Sipuel v. University of Oklahoma Brief for the Plaintiff-In-Error

    ADA L O I S  S I P l  
V.

U N I V E R S I T Y  Oi' 
O K L A H O M A

RECORD
A N D

B R I E F S











x >

N o .  3 2 7 5 6

In the

Supreme GInurt nf tty >̂tate of GDklaltnma
ADA LOIS SIPUEL, Plaintiff-in-error,

vs.

BOARD OF REGENTS OF THE UNIVERSITY OF OKLA­
HOMA, GEORGE L. CROSS, MAURICE H. MERRILL, 

GEORGE WADSACK and ROY GITTINGER, 
Defendants-in-error.

Appeal from the District Court of Cleveland County, 
Oklahoma; Honorable Ben T. Williams, Judge.

BRIEF FOR THE PLAINTIFF-IN-ERROR

AMOS T. HALL
107 */2 N. G reenw ood Avenue 
Tulsa, O klahom a

THURGOOD MARSHALL 
ROBERT L. CARTER 

20 West 40th Street 
New York, N. Y.

Attorneys for Plaintiff-in-error

FRANKLIN H. WILLIAMS 
New York, New York 

Of Counsel

(Action in Mandamus)





I N D E X .

Statem ent, n f C a se

PAGE

______ _________________  1

S ta te m e n t o f  F a c ts 2

Argument:

I. The refusal to admit plaintiff-in-error to the 
School of Law of the University of Oklahoma consti­
tutes a denial of rights secured under the Fourteenth 
Am endm ent________________________________________ 4

A. Distinctions on the Basis of Race and Color 
Are Forbidden Under Our Laws___________________  4

Alston v. Norfolk School Board, 112 F. (2d)
992 (C. C. A. 4th, 1940), cert. den. 311 U. S. 693
(1940)________________________________________ 7

Buchanan v. Warley, 245 U. S. 60 (1917)____ 7
Ex parte Endo, 323 U. S. 283 (1944)________  7
Ex parte Virginia, 100 U. S. 339 (1879)______ 6, 7
Hill v. Texas, 316 U. S. 400 (1942)___________  7
Hirabayashi v. United States, 320 U. S. 81

(1943) ...... __     7
Korematsu v. United States, 323 U. S. 214

(1944) _______________________________________  7
Missouri ex rel. Gaines v. Canada, 305 U. S.

337 (1938) _______________________________
Pierre v. Louisiana, 306 U. S. 354 (1939)
Slaughter House Cases, 16 Wall (U. S.) 394..
Smith v. Allwright, 321 U. S. 649 (1944)____
Steele v. Louisville and Nashville R. Co., 323

U. S. 192 (1944)_______________________________  7
Strauder v. Virginia, 100 U. S. 303 (1879)___ 5
Tunstall v. Brotherhood of Locomotive Fire­

men, 323 U. S. 210 (1944)______________________ 7
Yick Wo v. Hopkins, 118 U. S. 356 (1886)___ 7

c- t- 
c-



11

B. Rational Basis for the Equal But Separate
Doctrine Is That Although a State May Require 
Segregation, Equality Must Be Afforded Under the 
Segregation S ystem --------------------------------------------- 7

Buchanan v. Warley, 245 U. S. 60 (1917)------ 8
• Gong Lum v. Bice, 275 U. S. 78 (1928)---------  7, 8
Johnson v. School Board, 166 N. C. 468, 82

S. E. 832 (1914)_____________________________  8
Mitchell v. United States, 313 U. S. 80 (1941).. 7, 8 
Missouri ex rel. Gaines v. Canada, 305 U. S.

337 (1938)_____________________________________7, 8
Pearson v. Murray, 169 Md. 478, 182 A. 540

(1936) ________________________________________  7
People v. Gallagher, 93 N. Y. 438, 45 Am. Rep.

232 (1883)____________________________________  8
Plessy v. Ferguson, 163 U. S. 537 (1896)____ 7, 8
Roberts v. City of Boston, 5 Cush (Mass.)

198 (1849) ____________________________________ 8
Ward v. Flood, 48 Cal. 36 (1874)____________  7, 8

C. Equality Under a Segregated System is a
Legal Fiction and a Judicial Myth________________  9

1. The General Inequities in Public Educa­
tion Systems Where Segregation is Required___ 9

2. On the Professional School Level the In­
equities are Even More Glaring_______________  12
D. The Requirements of the 14th Amendment

Can Be Met Only Under an Unsegregated Public 
Educational System ____     17

E. Even Under “ Equal But Separate”  Doc­
trine, the Action of Defendants-in-Error Violated
the Fourteenth Amendment_______________________  18
II. The application for a writ of mandamus to com­

pel the defendant-in-error to admit plaintiff-in-error 
to the Law School of the University of Oklahoma was 
proper and should have been granted by the court below 19

A. Mandamus Should Issue as Prayed For___ 19
Blodgett v. Holden, 275 U. S. 142 (1928)____ 23
Comley ex rel. Rowell v. Boyle, 115 Conn.

406, 162 Atl. 26 (1932)_________________________  20

PAGE



I ll

Federal Trade Commission v. American
Tobacco Co., 264 U. S. 298 (1924)______________  23

Missouri ex rel. Gaines v. Canada, 305 U. S.
337 (1938)_________________________ 19,21,22,23,24

Missouri P. R. Co. v. Boone, 270 U. S. 466
(1926)________________________________________ 23

National Labor Relations Bd. v. Jones &
Laughlin Steel Corp., 301 U. S. 1 (1936)------------  23

Pearson v. Murray, 169 Md. 478, 182 A. 590
(1936)________________________________ 19, 21,23,24

Panama R. Co. v. Johnson, 264 U. S. 375
(1924) _______________ ________________________  23

Richmond Screw Anchor Co. v. United States,
275 U. S. 331 (1928)___________________________  23

Sharpless v. Buckles, et al., 65 Kan. 838,
70 Pac. 886 (1902)___________________________ 19,20

State ex rel. Hunter v. Winterrowd, 174 Ind.
592, 92 N. E. 650 (1910)_______________________19, 21

Welch v. Swasey, 193 Mass. 364, 79 N. E.
745 (1907) ____________________________________ 21
B. Prior Demand on Board of Higher Educa­

tion to Establish a Law School at Langston Uni­
versity Is Not a Prerequisite to This Action_______  24

Board of County Commrs. v. New Mexico
ex rel. Coler, 215 U. S. 296, 303 (1909)__________  26

City of Port Townsend v. First Natl. Bank,
241 Fed. 32 (C. C. A. 9th, 1917)______________  27

McCabe v. Atchison, T. & S. F. R. Co., 235
U. S. 151, 160 (1914)___________    25

McGillvray Const. Co. v. Hoskins, 54 Cal.
App. 636, 202 Pac. 677 (1921)__________________ 27

Mitchell v. United States, 313 U. S. 80, 96
(1941)________________________________________  25

Northern Pacific R. R. Co. v. Washington,
142 U. S. 492, 508 (1891)______________________  26

Pearson v. Murray, 169 Md. 478, 182 A. 590
(1936) ________________________________________

Peo. ex rel. John Pear v. Bd. of Education,

PAGE

25



PAGE

127 111. 613, 625 (1889)________________________  26
Pugsley v. Sellmeyer, 150 Ark. 247, 250 S. W.

538 (1923) 27
United States v. Saunders, 124 Fed. 124 (C.

C. A. 8th, 1903)_____________________________ 26, 27
United States ex rel. Aetna Ins. Co. v. Bd. 

etc. of Town of Brooklyn, 8 Fed. 473, 475 (N. D.
111. 1881) ____________________________________  27

Statutes.

Oklahoma Constitution, Art. 13, Sec. 3------------------------ 22
Oklahoma Constitution, Art. 13a, Secs. 1 and 2------------  26
Oklahoma Statutes (1941) 70, Secs. 363, 451-470, 1591-

1593 ______________ :______________________________  22
Oklahoma Statutes (1941 as amended 1945), Secs. 1451- 

1509 ____________________________________ ________  24

Other A uthorities.

American Teachers’ Association, The Black and White
of Rejections for Military Service (1944)-------------- 11,12

Blose, David T. and Ambrose Caliver, Statistics of the 
Education of Negroes {A Decade of Progress)
(1943) __________________________________________ 10,11

Biennial Surveys of Education in the United States. 
Statistics of State School Systems, 1939-40 and
1941-42 (1944) ___________________________________ 11

Dodson, Dan W. The American Mercury (July, 1946)- 16 
Flack, The Adoption of the Fourteenth Amendment

(1908) ___________________________________________  5
Lawyer’s Edition, Annotations, Yol. 27, p. 836________ 8
Lawyer’s Edition, Annotations, Vol. 44, p. 262______ 8
Merrill, Law of Mandamus (1892)__________________ 26, 27
National Survey of Higher Education for Negroes

(1943) ___________________________________________  15
Sixteenth Census of the United States: Population,

Yol. I ll , Part 4 (1940)___________________________  13
Thompson, Charles T., Negro Journal of Education,

Vol. 14 (1945)____________________________________ 13



In the

SUPREME COURT OF THE STATE OF OKLAHOMA

No. 32756

ADA LOIS SIPUEL, Plaintiff-in-error, 

vs.

BOARD OF REGENTS OF THE UNIVERSITY OF OKLA­
HOMA, GEORGE L. CROSS, MAURICE H. MERRILL, 

GEORGE WADSACK and ROY GITTINGER,
Defendants-in-error.

BRIEF FOR THE PLAINTIFF-IN-ERROR.

Statement of the Case.

This is an appeal from the judgment of the District 
Court of Cleveland County denying application of plaintiff- 
in-error for writ of mandamus entered upon a hearing held 
on July 9, 1946 to show cause why defendants-in-error 
should not be compelled to admit plaintiff-in-error to the 
first-year class of the School of Law of the University of 
Oklahoma. In its opinion, the Court below adopted the 
view that mandamus will not lie to compel state officers 
to disregard the specific commands of state statutes at the 
behest of a plaintiff who considers such statutes unconsti­
tutional (R. 36-37). Plaintiff-in-error interposed a timely 
motion for a new trial on July 9, 1946 (R. 45), which motion 
was duly overruled on July 12, 1946 (R. 47); whereupon 
this appeal was instituted.



2

Statement of Facts.

The facts in issue are uncontroverted and have been 
agreed to by both plaintiff and defendants-in-error (R. 38- 
40). The following are the stipulated facts:

That the plaintiff-in-error is a resident and citizen of 
the United States and of the State of Oklahoma, County of 
Grady and City of Chickasha, 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. 38).

That 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. 38).

That the Board of Regents of the University of Okla­
homa is an administrative agency of the State and exer­
cises over-all authority with reference to the regulation of 
instruction and admission of students in the University of 
Oklahoma; that the University is a part of the educational 
system of the State and is maintained by appropriations 
from public funds raised by taxation from the citizens 
and taxpayers of the State of Oklahoma; that the School 
of Law of the Oklahoma University specializes in law and 
procedure which regulates the government and courts of 
justice in Oklahoma; that there is no other law school main­
tained by public funds of the State where the plaintiff-in­
error 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-in-error 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



3

procedure offered at the School of Law of the University of 
Oklahoma, unless she is permitted to attend the aforesaid 
institution (R. 38-39).

That the plaintiff-in-error has completed the full college 
course at Langston University, a college maintained and 
operated by the State of Oklahoma for the higher educa­
tion of its Negro citizens (R. 39).

That the plaintiff-in-error made due and timely appli­
cation for admission to the first year class of the School of 
Law of the University of Oklahoma on January 14, 1946, 
for the semester beginning January 15, 1946, and that she 
then possessed and still possesses all the scholastic and 
moral qualifications required for such admission (R. 39).

That on January 14, 1946, when plaintiff-in-error ap­
plied for admission to the said School of Law, she complied 
with all of the rules and regulations entitling her to admis­
sion by filing with the proper officials of the University, an 
official transcript of her scholastic record; that said tran­
script was duly examined and inspected by the President, 
Dean of Admission and Registrar of the University (all 
defendants-in-error herein) and was found to be an official 
transcript entitling her to admission to the School of Law 
of the said University (R. 39-40).

That under the public policy of the State of Oklahoma, 
as evidenced by the constitutional and statutory provisions 
referred to in the answer of defendants-in-error herein, 
plaintiff-in-error was denied admission to the School of 
Law of the University of Oklahoma solely because of her 
race and color (R. 40).

That the plaintiff-in-error, at the time she applied for 
admission to the said school of the University of Okla­
homa, was and is now ready and willing to pay all of the



4

lawful charges, fees and tuitions required by the rules and 
regulations of the said University (R. 40).

That plaintiff-in-error 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. 40).

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 
unallocated 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. 43).

A R G U M E N T .

I.
The refusal to admit plaintiff-in-error to the School 

of Law of the University of Oklahoma constitutes a 
denial of rights secured under the Fourteenth Amend­
ment.

A. Distinctions on the Basis of Race and Color Are 
Forbidden Under Our Laws.

One of the most firmly entrenched principles of Ameri­
can constitutional law is that discrimination by a state based 
on race and color contravenes the federal constitution. The 
13th, 14th and 15th Amendments were specifically added to 
the Constitution to give Negroes full citizenship rights and



5

to bar any future efforts to alter their status in that re­
gard.1 The Court stated in Strauder v. Virginia:

“ This is one of a series of constitutional pro­
visions having a common purpose, namely: securing 
to a race recently emancipated, a race that through 
many generations had been held in slavery, all the 
civil rights that the superior race enjoy. The true 
spirit and meaning of the Amendments * * * can­
not be understood without keeping in view the his­
tory of the times when they were adopted, and the 
general objects they plainly sought to accomplish. 
At the time when they were incorporated into the 
Constitution, it required little knowledge of human 
nature to anticipate that those who had long been 
regarded as an inferior and subject race would, when 
suddenly raised to the rank of citizenship, be looked 
upon with jealousy and positive dislike, and that 
state laws might be enacted or enforced to perpetu­
ate the distinctions that had before existed. Dis­
criminations against them had been habitual. It was 
well known that, in some States, laws making such 
discriminations then existed, and others might well 
be expected.”
* * # * ' * • * *

“  . . . [the 14th Amendment] was designed to 
assure to the colored race the enjoyment of all the 
civil rights that under the law are enjoyed by white 
persons, and to give to that race the protection of 
the General Government, in that enjoyment, when­
ever it should be denied by the States. It not only 
gave citizenship and the privileges of citizenship to 
persons of color, but it denied to any State the power 
to withhold from them the equal protection of the 
laws, and authorized Congress to enforce its provi­
sions by appropriate legislation.”  
* * * * * * * *  1

1 Flack, The Adoption of the Fourteenth Amendment (1908).



6

“ If this is the spirit and meaning of the Amend­
ment, whether it means more or not, it is to be con­
strued liberally, to carry out the purposes of its 
framers. It ordains that no State shall make or 
enforce any laws which shall abridge the privileges 
or immunities of citizens of the United States * * *. 
It ordains that no State shall deprive any person 
of life, liberty or property, without due process of 
law, or deny to any person within its jurisdiction the 
equal protection of the laws. What is this but declar­
ing that the law in the States shall be the same for 
the black as for the white; that all persons whether 
colored or white, shall stand equal before the laws 
of the States and, in regard to the colored race, for 
whose protection the Amendment was primarily de­
signed, that no discrimination shall be made against 
them by law because of their color? The words of 
the Amendment, it is true, are prohibitory, but they 
contain a necessary implication of a positive immun­
ity, or right, most valuable to the colored race—the 
right to exemption from unfriendly legislation 
against them distinctively as colored; exemption 
from legal discriminations, implying inferiority in 
civil society, lessening the security of their enjoy­
ment of the rights which others enjoy, and discrim­
inations which are steps towards reducing them to 
the condition of a subject race.”  2

The express guarantees against discrimination on the 
basis of race and color run only against the states, hut 
these guarantees are considered so fundamental to our 
political and social health that even in the absence of 
express constitutional prohibitions, the federal govern­
ment is prohibited from making any classifications and dis­
tinctions on the basis of race and color. They are regarded

2 100 U. S. 303, 306, 307 (1879); see to same effect The Slaughter 
House Cases, 16 Wall. (U . S.) 36 (1873); E x parte Virginia, 100 
U. S. 339 (1879).



7

as arbitrary, unreasonable, constitutionality irrelevant and, 
therefore, violative of the 5th Amendment.8

The United States Supreme Court, and American courts 
in general, in giving life and substance to these abstract 
constitutional guarantees have been required to strike down 
statutes and governmental action in derogation thereof 
without regard to local racial customs and practices requir­
ing such color classifications.4

B. The Rational Basis for the Equal But Separate 
Doctrine Is That Although a State May Require 
Segregation, Equality Must Be Afforded Under 
the Segregation System.

History has proved that democracy can flourish only 
when its citizens are enlightened and intelligent. For this 
reason, the states, even though under no obligation to do so, 
have almost uniformly undertaken the task of providing free 
education through the elementary and high school level, 
and education through the college and professional level at 
minimum cost to the individual. Having voluntarily under­
taken to provide such opportunities, our Constitution and 
laws require that such opportunities be afforded to all per­
sons without regard to racial distinctions.5

3 Hirabayashi v. United States, 320 U. S. 81 (1943); Korematsu 
v. United States, 323 U. S. 214 (1944); E x parte Endo, 323 U. S. 
283 (1944) ; see also Steele v. Louisville and Nashville R. Co., 323 
U. S. 192 (1944); Tunstall v. Brotherhood of Locomotive Firemen, 
323 U. S. 210 (1944).

4 E x parte Virginia, 100 U. S. 339 (1879); Yick W o  v. Hopkins, 
118 U. S. 356 (1886); Buchanan v. Warley, 245 U. S. 60 (1917) ; 
Missouri ex rel. Gaines v. Canada, 305 U. S. 337 (1938) ; Pierre v. 
Louisiana, 306 U. S. 354 (1939); Hill v. Texas, 316 U. S. 400 
(1942) ; Alston v. Norfolk School Board, 112 F. (2d) 992 (C. C. 
A. 4th, 1940); cert. den. 311 U. S. 693 (1940) ; Smith v. Allwriqht, 
321 U. S. 649 (1944).

5 Pearson v. Murray, 169 Md. 478, 182 A. 590 (1936) ; Missouri 
ex rel. Gaines v. Canada, 305 U. S. 337 (1938); see also Gong Lum v. 
Rice, 275 U. S. 78 (1927); Ward v. Flood, 48 Cal. 36, 17 Am. Rep. 
405 (1874); People v. Gallagher, 93 N. Y. 438, 45 Am. Rep. 232 
(1883); see also Mitchell v. United States, 313 U. S. 80 (1941); 
Plessy v. Ferguson, 163 U. S. 537 (1896).



8

Oklahoma along with sixteen other states and the Dis­
trict of Columbia has established an educational system on 
a segregated basis, with schools set aside for the exclusive 
attendance of Negroes.6 This enforced segregation has 
been regarded by some American courts as not in conflict 
with the requirements of the 14th Amendment as long as 
the facilities afforded are equal to those afforded whites.7 
The United States Supreme Court has never directly de­
cided whether this view constituted a proper interpreta­
tion of the Constitution but has given some indication that 
it is in agreement with this statement of the law.8

6 Alabama, Arkansas, Delaware, Florida, Georgia, Kentucky, 
Louisiana, Maryland, Mississippi, Missouri, North Carolina, Okla­
homa, South Carolina, Tennessee, Texas, Virginia and West Virginia.

7 Johnson v. School Board, 166 N. C. 468, 82 S. E. 832 (1914) ; 
and cases cited in note 5, supra. Annotations on the question, 27 L. 
Ed. 836 and 44 L. Ed. 262.

8 In Plessy v. Ferguson, 163 U. S. 537 (1896) in sustaining the 
constitutionality of a Louisiana statute requiring intrastate railroads 
to furnish separate but equal coach accommodations for whites and 
Negroes, the United States Supreme Court cited with approval Ward 
v. Flood, People v. Gallagher, supra note 5 and Roberts v. City of 
Boston, 5 Cush (Mass.) 198 (1849) which held that a state could 
require segregation of the races in its educational system as long as 
equal facilities for Negroes were provided. In Gong Lum v. Rice, 
275 U. S. 78, 85 (1927) in passing upon the right of a state to clas­
sify Chinese as colored and force them to attend schools set aside for 
Negroes the Court assumed that the question of the right of a state to 
segregate the races in its educational system had been settled in favor 
of the state by previous Supreme Court decisions. In Missouri ex rel. 
Gaines v. Canada, 305 U. S. 337, 344 (1938) the Court said obiter 
dicta that right of a state to provide Negroes with educational advan­
tages in separate schools equal to that provided whites had been sus­
tained by previous Supreme Court decisions. In Mitchell v. United 
States, 313 U. S. 80 (1941) the Court continued to uphold the 
validity of the equal but separate doctrine as applied to transpor­
tation facilities. But in Buchanan v. Warley, 245 U. S. 60 (1917) a 
city ordinance which attempted to enforce residential segregation was 
struck down as violating the 14th Amendment, and, in general the 
Supreme Court has invalidated state action where it found that race 
or color was used as a criteria as evidenced by cases cited in note 4. 
The key to the difference in approach would seem to lay in Plessy v. 
Ferguson, supra, which involved transportation and used state cases 
upholding segregation in the state’s educational system to support 
argument that segregation in transportation was valid.



9

The apparent rationalization for this rule is that the 
states will provide equal educational opportunities for 
Negroes under a segregated system and that therefore such 
segregation does not amount to discrimination or a denial 
of equal protection within the meaning of the 14th Amend­
ment. PlaintifT-in-error contends that this “ equal but 
separate”  doctrine defeats the ends which the 14th Amend­
ment was intended to achieve. If the guarantees of this 
amendment are to be given life, substance and vitality, 
American courts will have to recognize that segregation 
itself amounts to an unlawful discrimination within the 
meaning of the 14th Amendment.

C. Equality U nder a Segregated System Is a Legal 
Fiction and a Judicial Myth.

There is of course a dictionary difference between the 
terms segregation and discrimination. In actual practice, 
however, this difference disappears. Those states which 
segregate by statute in the educational system have been 
primarily concerned with keeping the two races apart and 
have uniformly disregarded even their own interpretation 
of their requirements under the 14th Amendment to main­
tain the separate facilities on an equal basis. 1

1. The General Inequities in Public Educational 
Systems Where Segregation Is Required.

Racial segregation in education originated as a device 
to “ keep the Negro in his place” , i. e., in a constantly in­
ferior position. The continuance of segregation has been 
synonymous with unfair discrimination. The perpetuation 
of the principle of segregation, even under the euphemistic 
theory of “ separate but equal” ,, has been tantamount to 
the perpetuation of discriminatory practices. The terms



10

“ separate”  and “ equal”  can not be used conjunctively 
in a situation of this kind; there can he no separate equality.

Nor can segregation of white and Negro .in the matter 
of education facilities be justified by the glib statement 
that it is required by social custom and usage and generally 
accepted by the “ society”  of certain geographical areas. 
Of course there are some types of physical separation 
which do not amount to discrimination. No one would 
question the separation of certain facilities for men and 
women, for old and young, for healthy and sick. Yet in 
these cases no one group has any reason to feel aggrieved 
even if the other group receives separate and even pref­
erential treatment. There is no enforcement of an inferior 
status.

This is decidedly not the case when Negroes are segre­
gated in separate schools. Negroes are aggrieved; they are 
discriminated against; they are relegated to an inferior 
position because the entire device of educational segrega­
tion has been used historically and is being used at present 
to deny equality of educational opportunity to Negroes. 
This is clearly demonstrated by the statistical evidence 
which follows.

The taxpayers’ dollar for public education in the 17 
states and the District of Columbia which practice com­
pulsory racial segregation was so appropriated as to de­
prive the Negro schools of an equitable share of federal, 
state, county and municipal funds. The average expense 
per white pupil in nine Southern states reporting to the 
U. S. Office of Education in 1939-1940 was almost 212% 
greater than the average expense per Negro pupil.9 Only

9 Statistics o f the Education of Negroes (A  Decade of Progress) 
by David T. Blose and Ambrose Caliver (Federal Security Agency, 
U. S. Office of Education, 1943). Part I, Table 6, p. 6.



11

$18.82 was spent per Negro pupil, while the same average 
per white pupil was $58.69.10 11

Proportionate allocation of tax monies is only one cri­
terion of equal citizenship rights, although an important 
one. By every other index of the quality and quantity of 
educational facilities, the record of those states where seg­
regation is a part of public educational policy clearly dem­
onstrates the inequities and second class citizenship such 
a policy creates. For example, these states in 1939-1940 
gave whites an average of 171 days of schooling per school 
term. Negroes received an average of only 156 days.11 The 
average salary for a white teacher was $1,046 a year. The 
average Negro teacher’s salary was only $601.12 13

The experience of the Selective Service administration 
during the war provides evidence that the educational in­
equities created by a policy of segregation not only deprive 
the individual Negro citizens of the skills necessary to a 
civilized existence and the Negro community of the leader­
ship and professional services it so urgently needs, but also 
deprive the state and nation of the full potential embodied 
in the intellectual and physical resources of its Negro citi­
zens. In the most critical period of June-July 1943, when 
the nation was desperately short of manpower, 34.5% of 
the rejections of Negroes from the armed forces were for 
educational deficiencies. Only 8% of the white selectees 
rejected for military service failed to meet the educational 
standards measured by the Selective Service tests.18

10 Ibid, Table 8.
11 Biennial Surveys of Education in the United States. Statistics 

of State School Systems, 1939-40 and 1941-42 (1944), p. 36.
12 Blose and Caliver, op. cit., supra note 9, Part I, p. 6, Table 7.
13 The Black and White of Rejections for Military Service. Mont­

gomery, Ala., American Teachers Association (1944), p. 5.



12

Lest there be any doubt that this generalization applies 
to Oklahoma as well, let us look at the same data for the 
same period with respect to this state. We find that 16.1% 
of the Negro rejections were for educational deficiency, 
while only 3% of the white rejections were for this reason.14

This demonstration of the effects of inequitable segre­
gation in education dramatizes one of the key issues which 
this Court must decide. Failure to provide Negroes with 
equal educational facilities has resulted in deprivations to 
the state and nation as well as to the Negro population. The 
Constitution establishes a set of principles to guide human 
conduct to higher levels. If the courts reject the theory of 
accepting the lowest common denominator of behavior be­
cause this standard is so blatantly detrimental to the indi­
vidual citizen, to the state, and to the nation as a w h o le - 
then they will be exercising the power which the Constitu­
tion has vested in them for the protection of the basic values 
of our society.

2. On the Professional School Level the Inequi­
ties Are Even More Glaring.

As gross as is the discrimination in elementary educa­
tion, the failure to provide equal educational opportunities 
on the professional levels is proportionately far greater. 
Failure to admit Negroes into professional schools has 
created a dearth of professional talent among the Negro 
population. It has also deprived the Negro population of 
urgently needed professional services. It has resulted in 
a denial of equal access to such services to the Negro popu­
lation even on a “ separate”  basis.

14 Ibid.



13

In Oklahoma, the results of the legal as well as the extra- 
legal policies of educational discrimination have deprived 
the Negro population of professional services in the fields 
of medicine, dentistry and law. The extent of this depriva­
tion can best be judged by the following data, in which the 
figures represent one lawyer, doctor and dentist, respec­
tively, to the following number of white and Negro popula­
tion : 15 16

Profession White Negro
Law _____________ ______  643 6,494
Medicine _____ ___ ______ 976 2,165
Dentistry ______________  2,646 7,675

That this critical situation is not peculiar to Oklahoma 
alone but is an inevitable result of the policy of racial seg­
regation and discrimination in education is demonstrated 
by an analysis made by Dr. Charles H. Thompson.10 He 
states that:

“ In 1940 there were 160,845 white and 3,524 Negro 
physicians and surgeons in the United States. In 
proportion to population these represented one phy­
sician to the following number of the white and Negro 
population, respecitvely:

Section White Negro
U. S.................... 735 3,651
North ________ ... . 695 1,800
South _______ ____  859 5,300:
W est_________ _ _ 717 2,000
Mississippi ___ ......  4,294 20,000

15 Based on data in Sixteenth Census of the United States: Popu­
lation, Vol. I ll , Part 4, Reports by States (1940).

16 Charles H. Thompson, “ Some Critical Aspects of the Problem 
of the Higher and Professional Education for Negroes,”  Journal o f  
Negro Education (Fall 1945), pp. 511-512.

* To the nearest hundred.



14

“ A  similar situation existed in the field of den­
tistry, as far as the 67,470 white and 1,463 Negro 
dentists were concerned:

Section White Negro

U. S_________ _____  1,752 8,800f
North ____________  1,555 3,900f
South _______ 2,790 14,000f
W est_____________  1,475 3,900f
M iss._____________  14,190 37,000t

“ In proportion to population there are five times 
as many doctors and dentists in the country as a 
whole as there are Negro doctors and dentists; and 
in the South, six times as many. Even in the North 
and West where we find more Negro doctors and 
dentists in the large urban centers, there are two 
and one-half times as many white dentists and doc­
tors as Negro.

“ Law—In 1940 there were 176,475 white and 
1,052 Negro lawyers in the U. S. distributed in pro­
portion to population as follows:

Section White Negro

U. S___ _______ ...... 670 12,230
North ________ ...... 649 4,000
South ________ ...... 711 30,000
West _________ ...... 699 4,000
Miss. _________ ...... 4,234 358,000

“ There are 18 times as many white lawyers as 
Negro lawyers in the country as a whole; 45 times 
as many in the South; and 90 times as many in Mis­
sissippi. Even in the North and West there are six 
times as many white lawyers as Negro. With the 
exception of engineering, the greatest disparity is 
found in law.”  (Italics ours.) * *

f  To the nearest hundred or thousand.
* To the nearest hundred or thousand.



15

The professional skills developed through graduate 
training are among the most important elements of our 
society. Their importance is so great as to be almost self- 
evident. Doctors and dentists guard the health of their 
people. Lawyers guide their relationships in a complicated 
society. Engineers create and service the technology that 
has been bringing more and more good to more and more 
people. Teachers pass on skills and knowledge from one 
generation to another. Social service workers minister to 
the needs of the less fortunate groups in society and reduce 
the amount of personal hardship, deprivation, and social 
friction.

Yet the action of the lower Court in this case, quite 
aside from any legal considerations, lends the sanction of 
that Court to a series of extra-legal actions by which the 
various states have carried on a policy of discrimination in 
education. In Oklahoma, the 16 other states and the Dis­
trict of Columbia where separate educational facilities for 
whites and Negroes are mandatory, the provisions for 
higher education for Negroes are so inadequate as to de­
prive the Negro population of vital professional services.

The record of this policy of educational segregation and 
denial of professional education to Negroes is clear. In 
the 17 states and the District of Columbia in 1939-1940 the 
following number of states made provisions for the public 
professional education of Negro and white students: 17

Profession White Negro
Medicine ______________ ......... . 15 0
Dentistry______________ _______  4 0
T jaw 16 1
Engineering __________ _______  17 0
Social service_________ ________ 9 0
Library science _______ ________ 13 1
Pharmacy ___________ _______  14 0

17 Based on data in National Survey of Higher Education for  
Negroes, Vol. II, p. 15.



16

The result has been that the qualified Negro student is 
unable to obtain the professional education for which he 
may be fitted by aptitude and training.

Other sections of the country, too, practice discrimina­
tion against Negroes in professional schools by means of 
“ quotas”  and other devices.18 But only in the South is 
legal discrimination practiced and it is thus in the South 
that the Negro population suffers the greatest deprivation 
of professional services.

The record is quite clear, and the implications of the 
above data are obvious. There is another implication, how­
ever, which is not as obvious but is of almost equal impor­
tance in the long-range development of the Negro people. 
From the ranks of the educated professionals come the 
leaders of a minority people. In the course of their daily 
duties they transmit their skills and knowledge to the 
people they serve. They create by their daily activities

18 “ Wherever young Americans of ‘minority’ races and religions 
are denied, by the open or secret application of a quota system, the 
opportunity to obtain a medical, law or engineering education, apolo­
gists for the system have a standardized justification.

“ In their racial-religious composition, the apologists contend, the 
professions must maintain ratios which correspond to those found in 
the composition of the whole population. Were the institution of 
higher learning left wide open to ambition and sheer merit, they 
argue, the professions would be ‘unbalanced’ by a disproportionate 
influx of Catholics, Negroes and Jews.

“ Such racial arithmetic hardly accords with our vaunted prin­
ciples of democratic equality. In effect it establishes categories of 
citizenship. It discriminates against tens of millions of citizens by 
denying their sons and daughters a free and equal choice of profes­
sion. If a ratio must be imposed on the basis of race, why not on the 
pigmentation? Forcing a potentially great surgeon to take up some 
other trade makes sense only on the voodoo level of murky prejudice. 
It not only deprives the citizen of his legal and human rights but, no 
less important, it deprives the country of his potentially valuable ser­
vices.”— from “ Religious Prejudices in Colleges,’ ’ by Dan W . Dodson. 
The American Mercury (July 1946), p. 5.



17

a better, more enlightened citizenship because they trans­
mit knowledge about health, personal care, social relation­
ships and respect for and confidence in the law.

The average Negro in the South looks up to the Negro 
professional with a respect that sometimes verges on awe. 
It is frequently the Negro professional w7ho is able to artic­
ulate the hopes and aspirations of his people. The defen- 
dants-in-error, in denying to the plaintiff-in-error access to 
equal educational facilities on the professional level within 
the State, also deny to the Negro population of Oklahoma 
equal access to professional services and deprive it of one 
of the most important sources of guidance in citizenship. 
This denial is not only injurious to plaintiff-in-error, and 
to other Negro citizens of the State, but adverse to the 
interests of all the citizens of the State by denying to them 
the full resources of more than 168,849 Negro citizens.

D. The Requirements of the 14th Amendment Can 
Be Met Only Under an Unsegregated Public Edu­
cational System.

The above recited data show that equal educational facil­
ities are not maintained in those states, including Okla­
homa, where segregation is required. More than that it is 
impossible for equal facilities to be maintained under a 
segregated system. The theory that segregation is consti­
tutional as long as the facilities provided for Negroes are 
equal to those provided for whites is a proper interpreta­
tion of the federal constitution only if the rationale on 
which the rule is based is correct. In those areas where 
segregation is enforced in education, the states concerned 
are least able economically to afford the establishment of 
equal facilities in all respects that are required if this 
theory is to be complied with. The facts demonstrate that 
they could not provide such equal facilities even if they



18

were so disposed to do so. It is clear, therefore, that the 
rationale for this “ equal but separate rule”  of law is fal­
lacious. A fortiori, the theory is erroneous and should be 
discarded in light of the actualities of the situation.

Segregation constitutes a denial of the equal protection 
of the laws and is violative of the Constitution and the laws 
of the United States. Despite the line of cases in support 
of the “ separate but equal”  theory, this Court is under an 
obligation to re-examine the rule and the reasons on which 
it is based in the light of present day circumstances and to 
adopt and apply a rule which conforms with the require­
ments of our fundamental law.

E. Even Under “ Equal But Separate” Doctrine, the 
Action of Defendants-in-Error Violated the Four­
teenth Amendment.

No provision for the legal education of Negroes has 
been made or is being made in the State of Oklahoma. 
Plaintiff-in-error, possessing all the scholastic, moral and 
legal qualifications therefor, applied for admission to the 
only law school maintained by the State for the legal edu­
cation of its citizens. Defendants-in-error refused her ad­
mission on the grounds that the state policy requires the 
separation of white and Negroes in the educational sys­
tem in the State of Oklahoma. Plaintiff-in-error contends 
that however free Oklahoma may be in adopting and main­
taining a policy locally designed to meet its “ racial prob­
lems” , this policy must conform to the requirements of the 
federal constitution. Since the University of Oklahoma 
Law School is the only law school maintained by the State, 
plaintiff-in-error must be admitted to said school if the State 
is to fulfill its obligation to plaintiff-in-error under the 14th 
Amendment and under its own Constitution.



19

This is true under either theory discussed above. Under 
the theory of plaintiff-in-error that segregation in Okla­
homa’s educational system violates the federal constitu­
tion, the maintenance of a school of law for the exclusive 
attendance of white persons is unconstitutional. Plaintiff- 
in-error and other Negro applicants must be admitted to 
such school if they are to enjoy the rights and benefits guar­
anteed under the Fourteenth Amendment. Under the 
theory of defendants-in-error that segregation does not vio­
late our fundamental law, as long as the facilities set aside 
for Negroes are equal to those set aside for whites, it is 
clear that the State cannot set up a law school exclusively 
for whites without at the same time making similar provi­
sions for Negroes.19 Since this has not been done in Okla­
homa, the right of plaintiff-in-error to be admitted to the 
law school of the state university is undenied. The refusal 
of defendants-in-error to admit her to the school solely on 
the basis of race and color violates her rights under the 
Fourteenth Amendment.

II.

The application for a writ of mandamus to compel 
the defendant-in-error to admit plaintiff-in-error to the 
Law School of the University of Oklahoma was proper 
and should have been granted by the court below.

A. Mandamus Should Issue as Prayed For.

The Court below in denying application of plaintiff-in­
error for a writ of mandamus relied upon Sharpless v. 
Buckles et al., 65 Kan. 838, 70 Pac. 886 (1902); State ex rel. 
Hunter v. Winterrowd, 174 Ind. 592, 92 N. E. 650 (1910);

19 Pearson v. Murray, 169 Md. 478, 182 A. 590 (1936); Mis­
souri ex rel. Gaines v. Canada, 305 U. S. 337 (1938); see also other 
cases cited in note 5, supra.



20

Comley ex rel. Rowell v. Boyle, 115 Conn. 406, 162 Atl. 
(Conn.) 26 (1932), where the courts in question refused to 
make a preliminary determination of the constitutionality 
of state statutes before deciding whether a writ of man­
damus should issue. The Court in these instances held that 
a mandamus action was not proper unless the applicant had 
a clear legal right to the thing demanded, and a duty on the 
part of the defendant existed to do the acts required in the 
absence of any other adequate remedy.

In Sharpless v. Buckles, supra, a state statute permitted 
persons engaged in the railway express service who were 
outside the district at the time an election took place to 
vote in said election and to have their ballots counted along 
with those cast in the district. An election was held. Votes 
outside the district were cast in accordance with the statute 
and counted by the Board of Commissioners along with 
other ballots cast. Application was made for a peremptory 
writ of mandamus to compel the Board of Commissioners 
to reconvene, recount the vote and to exclude the ballots 
cast outside the election district. The Court denied the 
writ on the grounds that the Board of Commissioners were 
merely under a duty to open the returns, determine the 
genuineness of the ballots cast and certify the results. The 
Court held that the Commissioners had no duty or authority 
to determine the constitutionality of the statute permitting 
absentee voting by persons engaged in the railway service 
and that the Court could not by mandamus action impose 
upon officials a duty beyond that which the law established.

In Comley ex rel. Rotvell v. Boyle, supra, zoning regu­
lations in the City of Stamford required a person to obtain 
a permit to erect any structure within the city limits and 
provided that no permit should issue unless the proposed 
building complied with the law, ordinances and regulations



21

applicable thereto. The Building Commission was given 
authority to vary or modify any provision or regulation of 
the Building Code where it was found that it was impossible 
to comply with the strict letter of those provisions. Appli­
cation was made to build a structure with material ad­
mittedly prohibited under the Building Code. Relator 
sought to have the Building Commission permit a variation 
in the provisions of the Code in order to permit him to 
erect the proposed building. This being refused, relator 
petitioned for a writ of mandamus to compel the Building 
Commission to permit him to erect the building proposed. 
The court refused the writ on the grounds that the court 
could not disturb the proper exercise of discretion on the 
part of public officials, and it was held that mandamus 
would not lie except to force a public official to exercise a 
mandatory duty and where the party seeking the writ had 
a clear legal right to the thing demand and no sufficient 
or adequate remedy.20

These cases do not bar the right to writ of mandamus 
in this case. Plaintiff-in-error has a clear legal right to 
obtain a legal education in the State of Oklahoma as long 
as provisions for such education is made for white persons. 
Once the state undertakes to provide educational facilities 
for white persons, it is under a legal duty to make pro­
vision at the same time for the education of Negroes.21 The 
constitution and statutes of Oklahoma which require the

20 In State ex rel. Hunter v. Winterrowd, supra, the Court said:
“ The writ will issue . . . as a matter of right, in favor of 

a petitioner who shows a clear legal right to the thing de­
manded and an imperative duty on the part of respondent to 
do the acts required in the absence of any other adequate 
remedy.” But compare Welch v. Swasey, 193 Mass. 364, 
79 N. E. 745 (1907).

21 Pearson v. Murray, 169 Md. 478, 182 A. 590 (1936); Mis­
souri ex rel. Gaines v. Canada, 305 U. S. 337 (1938) and cases cited 
in notes 5 and 8, supra.



separation of the races in the public school system must be 
read and interpreted in the light of constitutional require­
ments.22 Under any view of the law, as pointed out in the 
first part of this brief, the state must admit plaintiff-in­
error to the law school of University of Oklahoma if it has 
made no other provision for the legal education of Negroes. 
Segregation statutes can only be constitutional if equal 
facilities are provided. Even under the “ equal but sepa­
rate”  theory, the state would be under an obligation either 
to afford Negroes equal educational facilities in a school 
set aside exclusively for them or to admit them to the school 
set aside for whites. A state cannot use a segregation 
statute as a means of avoiding its mandatory obligation 
that Negroes be afforded the equal protection of the laws.

The only adequate remedy herein available for plaintiff- 
in-error is the remedy available by the writ of mandamus. 
The right of all Negroes in Oklahoma, to a legal education, 
accrued and vested when the State established and main­
tained the School of Law at University of Oklahoma for 
the legal education of whites. Plaintiff-in-error asserted 
this right upon her application for admission to School of 
Law, University of Oklahoma, and the obligation of the 
State to make provision for her legal education became an 
immediate obligation which could not be postponed. Plain­
tiff-in-error now has a right to a legal education as long as 
the State is making provisions for the legal education of

22 Sec. 3, Art. 13 of Oklahoma Constitution provides for impar­
tial maintenance of separate schools ; 70 Okla. Stat. 1941, Sec. 363 
provides for separate schools for training of teachers; 70 Okla. Stat. 
1941, §§451-470 contain penal provisions; 70 Okla. Stat. 1941, 
§§ 1591, 1592, 1593 provide for out of state scholarships for Negroes 
who desire instruction on any subject taught only in a state insti­
tution maintained exclusively for whites. That this type of provision 
does not satisfy the constitutional requirements was settled in Mis­
souri ex rel. Gaines, supra.

22



23

whites. Having the requisite lawful qualifications, and 
there being no law school provided for Negroes, defendants- 
in-error were without constitutional or statutory authority 
to refuse to admit her to the Law School of the University 
of Oklahoma. Whatever doubts might have existed on this 
question were resolved by the United States Supreme 
Court in 1938 in the case of Missouri ex rel. Gaines v. 
Canada, 305 U. S. 337 (1938).

Oklahoma Statutes, requiring the segregation of the 
races in the public school system, at the very least, can 
only satisfy the Fourteenth Amendment if implicit in 
such statutes is the requirement that the equal facilities be 
afforded Negroes in separate schools.23 Barring this, Ne­
groes must be admitted to the school set aside for exclusive 
attendance of whites. Statutes must be read and inter­
preted by the courts in a manner which will save their 
constitutionality wherever possible.24 These statutes, there­
fore, cannot be regarded as rigid and inflexible prohibitions 
against Negroes and whites attending the same schools but 
only necessitating separation where Negroes are specifi­
cally afforded equal facilities. Public officers of the state, 
therefore, are under a duty to admit Negroes to schools set 
aside for whites if no school is maintained for Negroes.25

If the statutes in question impose the inflexible duty on 
the defendants-in-error not to permit a qualified Negro 
applicant to avail himself of the opportunities for educa­

23 Missouri ex rel. Gaines v. Canada, supra. Pearson v. Murray, 
supra; Ward v. Flood, supra,

24 National Labor Relations Bd. v. Jones & Laughlin Steel Corp., 
301 U. S. 1 (1936); Blodgett v. Holden, 275 U. S. 142 (1928); 
Federal Trade Commission v. American Tobacco Co., 264 U. S. 298 
(1924); Panama R. Co. v. Johnson, 264 U. S. 375 (1924); Mis­
souri P. R. Co. v. Boone, 270 U. S. 466 (1926) ; Richmond Screw 
Anchor Co. v. United States, 275 U. S. 331 (1928).

25 Missouri ex rel. Gaines v. Canada, supra; Pearson v. Murray, 
supra.



24

tion afforded by the State in the same institution with 
whites, wdiere no such facilities are provided for Negroes, 
the statutes clearly fail to meet the minimum requirements 
of the Fourteenth Amendment and are unconstitutional.26 
Either the defendants-in-error are obligated to admit plain­
tiff-in-error to the school of law of Oklahoma University 
or the statutes, under which they rely to keep plaintiff-in­
error from attending said school, are unconstitutional. No 
other conclusion is possible. If the constitutionality of 
Oklahoma segregation law are to be sustained, their pro­
visions can only apply where equal facilities are afforded 
Negroes in separate schools.

B. Prior Demand on Board of Higher Education to 
Establish a Law School at Langston University 
Is Not a Prerequisite to This Action.

It is contended by defendants-in-error that no applica­
tion was made to the Board of Higher Education of the 
State for the establishment of a school of law at Langston 
University, a college maintained by the State for the educa­
tion of Negroes (R. 30).27 That no such application had 
been made is one of the agreed statements of fact (R. 43).

26 Pearson v. Murray, supra; Missouri ex rel. Gaines v. Canada, 
supra, and other cases cited in note 5.

27 70 Okla. Stat. 1941 §§ 1451 to 1509, as amended in 1945, 
relate to Langston University. § 1451, supra, as amended by 
implication in 1945, is as follows: “ The Colored Agricultural and 
Normal University of the State of Oklahoma 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 advisable 
by such board and in the fundamental laws of this state and of the 
United States, in the rights and duties of citizens, and in the agri­
cultural mechanical and industrial arts.”



25

Such a demand upon this Board did not constitute a pre­
requisite to the maintenance of this action.

In the instant case there is no dispute as to the avail­
ability of provisions for the legal education of white citizens 
of the State desiring same as of the date plaintifif-in-error 
duly applied and was denied admission to the first year 
class of the School of Law of the University of Oklahoma. 
The State, once having established a law school for one 
portion of its citizenry, is under a constitutional mandate 
to make equal provision for all, Negro as well as white.28 
When plaintiff-in-error asserted her right, to a legal edu­
cation by seeking admission to the University of Oklahoma, 
no greater burdens or duties could be placed upon or re­
quired of her than of white persons seeking to afford them­
selves of the facilities provided by the State.29 Nor can 
it be asserted here that failure of plaintiff-in-error to per­
form this additional burden enabled the State to avoid its 
plain duty to provide her with legal education on equal 
footing with that provided for whites.

28 Cases cited in note 5, supra.
29 “ It is no answer to say that the colored passenger, if sufficiently 

diligent and forehanded, can make their reservations so far in advance 
as to be assured of first-class accommodations. So long as white 
passengers can secure first-class accommodations on the day of travel 
and the colored passengers cannot, the latter are subjected to inequali­
ties and discrimination because of their race” Mitchell v. United 
States, 313 U. S. 80 at 96 (1941).

As stated by the U. S. Supreme Court in a case involving dis­
crimination in transportation if he is denied . . . , under
the authority of a state law, a facility or convenience . . . which, under 
substantially the same circumstances, is furnished to another . . . , 
he may properly complain that his constitutional privilege has been 
invaded” McCabe v. Atchison, T. & S. F. R. Co., 235 U. S. 151, 160 
(1914).

“ Whatever system it adopts for legal education now must fur­
nish equality of treatment now. . . .  If those students are to be 
offered equal treatment in the performance of the function, they 
must, at present, be admitted to the one school provided.”  Pearson 
v. Murray, supra.



26

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.30 It was not necessary, therefore, that 
the plaintiff-in-error make a prior demand upon this Board 
to perform its lawful duty before she may request man­
damus to obtain her lawful right to a legal education.31

30 Art. 13a, Secs. 1 & 2, Okla. Constitution.
31 “ The argument in support of the proposition that a formal de­

mand and refusal must be shown, is based upon the assumption that 
the duty here sought to be enforced is of a private nature, affecting 
only the right of realtor, the law being, that in such a case a demand 
is necessary to lay the foundation for relief by mandamus. If, on 
the contrary, the duty . . .  is a public duty, resting upon respondent 
by virtue of their office, it is equally well settled that no such demand 
and refusal are necessary. . . . The duty here sought to be enforced 
is not of a private nature, nor is the right demanded by relator 
merely an individual right, within the meaning of the rule announced. 
By the statutes of this State, the duty of providing schools for the- 
education of all children between the ages of six and twenty-one in 
their district, is imposed upon respondents. . . . The duty thus im­
posed upon respondents is incumbent upon them by virtue of their 
office. In such case it has been well said, ‘the law itself stands in 
the place of a demand, and the neglect and omission to perform the 
duty stands in the place of a refusal, or in other words, the duty 
makes the demand, and the omission is the refusal.’ ” Peo. ex rel. 
John Pear v. Bd. of Education, 127 111. 613, 625 (1889).

“ Decisions that there must be an express and distinct demand or 
request to perform must be confined to such cases (o f a private 
nature) where, however, the duty is of a purely public nature . . . , 
and where there is no one person upon whom either a right or duty 
devolves to make a demand or performance and express demand or 
refusal is not necessary.” Merrill, “ Law of Mandamus” (1892) pp. 
277 and 278.

“ Whatever public officers are empowered to do for the benefit of 
private citizens the law makes it their duty to perform whenever 
public interest or individual rights call for the performance of that 
duty.” United States v. Saunders, 124 Fed. 124, 126 (C. C. A. 8th, 
1903); see also Bd. of County Commrs. v. New Mexico ex rel. Coler, 
215 U. S. 296, 303 (1909); Northern Pacific RR Co. v. Washing­
ton, 142 U. S. 492, 508 (1891).



27

It is axiomatic that the law will not require an individual 
to do a vain and fruitless act before relief from a wrong 
will be granted.32 This general rule applies in the instant 
case as the demand alleged to be prerequisite to the grant­
ing of relief would have been unavailing, fruitless and 
vain 33 as after the filing of this cause the Board of Regents 
of Higher Education, having knowledge thereof, met and

32 “ The law does not require a useless thing . . . the law never 
demands a vain thing, and when conduct and action of the officer is 
equivalent to a refusal to perform the duty desired, it is not neces­
sary to go through the useless formality of demanding its perform­
ance.” Merrill, “ Law of Mandamus” (supra) at 279.

“Equity does not insist on purposeless conduct and disregards 
mere formalities,” 49 Am. Jur. 167.

“ Demand is not, of course, necessary where it is manifest it would 
be but an idle ceremony.”  Ferries, “ Law of Extraordinary Rem­
edies” (1926), p. 228. City o f Port Townsend v. First Natl. Bank, 
241 Fed. 32 (C. C. A. 9th, 1917) ; McGUlvray Const. Co. v. Hos- 
kins, 54 Cal. App. 636, 202 Pac. 677 (1921); Pugsley v. Sellmeyer, 
150 Ark. 247, 250 S. W . 538 (1923); United States v. Saunders, 124 
Fed. 124 (C. C. A. 8th, 1903).

“ . . .  if the defendant has shown by his conduct that he does not 
intend to perform the act . . . , it would be a work of supererogation 
to require that a demand should be made for its performance. Here 
the only effect of issuing the writ of mandamus is to require the 
authorities of the town to do what by law they are obliged to do . . . 
it seems . . .  to be proper and reasonable and nothing more than the 
Relator has a right to claim of the court, that an order should be 
issued requiring them to do what the law says, in such a case as this, 
they must do.”  United States ex rel. Aetna Ins. Co. v. Bd. etc. o f  
Town of Brooklyn, 8 Fed. 473, 475 (N. D. 111. 1881).

33 Plaintiff’s Exhibit “ 2”— the Board empowered to make sepa­
rate provision for Relator or other colored citizens had no funds 
available for this purpose. Even if they had available funds it would 
have been many months before such a school could have been estab­
lished (R. 43).

The fruitlessness of such a demand receives support from the 
failure of this Board to take any such action subsequent to having 
notice of Relator’s desire for a legal education had they intended to 
fulfill their legal obligation to make provisions for Negro students 
desiring legal education by establishing a separate school. Such 
should have been done immediately upon having notice thereof 
brought to their attention (R. 43).



28

considered the questions involved therein; had no unallo­
cated 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 allocation for that purpose; that in order to 
open up and operate a law school for Negroes in this State, 
it will be necessary for the Board to either withdraw exist­
ing allocation, procure moneys, if the law permits, from the 
Governor’s contingent fund, or make an application to the 
next Oklahoma legislature for funds sufficient not only to 
support the present institutions of higher education 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 opening up and operation 
of a law school in the State for Negroes and has never been 
requested to do so (R. 43).

Conclusion.

For the reasons hereinbefore discussed plaintiff-in-error 
asserts that her constitutional right to equal protection of 
the laws can only be protected by her admission to the School 
of Law of the University of Oklahoma and that under any 
view of the constitutional principles involved, this conclu­
sion is inescapable. Her rights to a legal education now, 
and not at some future time, is the only issue before this 
Court. That right can only be enforced by the issuance of 
the writ prayed for in her petition to compel defendants-in- 
error to admit her to the School of Law of Oklahoma 
University.



29

W herefore it is respectfully submitted that the judg­
ment of the Court below is in error and should be reversed.

A mos T. Hall

107 V2 N . Greenwood Avenue 
Tulsa, Oklahoma

T hurgood Marshall 
Robert L. Carter

20 West 40th Street 
New York, N. Y.

Attorneys for Plaintiff-in-error

F ranklin H. W illiams 
New York, N. Y.

Of Counsel







«3 g g t o 212 [5471]
Lawyers Press, I nc., 165 William St., N. Y. C .; ’Phone: BEekraan 3-2300







S U P R E M E  CO URT OF T H E  U N I T E D  S T A T E S

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

R obert L. Carter, 
Of Counsel.

A mos T. H all,
T htjrgood M arshall, 

Attorneys for Petitioner.



'  r ’ I.

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S , " W  f  ‘ ' ;• ■

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INDEX

S ubject 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

Cases Cited

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

Statutes Cited

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



t



S U P R E M E  EDURT DF T H E  U N I T E D  S T A T E S

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 Kegents 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 (E. 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 (E. 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 (E. 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 (E. 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 Eegistrar 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.1 2

Conclusion

W herefore, 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 all,
T hurgood M arshall, 

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.



S U P R E M E  COURT OF T H E  U N I T E D  S T A T E S

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).

Jurisdiction

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 and 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

s 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 prim-ie 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 law7 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 tvas 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 office vs 
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, but 
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 for 
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 necessary for the board to either withdraw existing 
allocations, procure moneys, if the law permits, from 
the Governor’s contingent fund, or make an application

6113 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 be 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 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,



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 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. 
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 Law7 of the University of Oklahoma; that 
the plaintiff wrill be placed at a distinct disadvantage at 
the bar of Oklahoma and in the public service of the 
aforesaid State wdth persons who have had the benefit 
of the unique preparation 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 
vdiite 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 all,
T hurgood M arshall, 
Attorneys for Petitioner.

Robert 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 lawr. The Board 
shall consist of nine (9) members appointed 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 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 hoard 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 Eegents—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 
he 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 childi’en—jSepa- 
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 white 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 tbeir 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)







✓





/



TRANSCRIPT OF RECORD

S u p r e m e  C o u r t  o f  t h e  U n i t e d  S ta te s

OCTOBER TERM, 1947

No. 369

ADA LOIS SIPUEL, PETITIONER, 

vs.

BOARD OF REGENTS OF THE UNIVERSITY OF 
OKLAHOMA, ET AL.

ON W RIT OF C E R TIO R A R I TO T H E  S U P R E M E  C O U R T  OF T H E  ST A T E

O F O K L A H O M A

PETITION FOR CERTIORARI FILED SEPTEMBER 24, 1947. 

CERTIORARI GRANTED NOVEMBER 10, 1947.





SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1947

ADA LOIS SIPUEL, PETITIONER, 
vs.

BOARD OF REGENTS OF THE UNIVERSITY OF

ON P E TIT IO N  FO R  W R IT  OP C E R TIO R A R I TO T H E  S U P R E M E  C O U R T

No.

vs.

3GENTS OF THE UN 
OKLAHOMA ET AL.

OF T H E  ST A T E  OF O K L A H O M A

INDEX
Original Print

Proceedings in Supreme Court of Oklahoma.......................  2 1
Petition in error......................................................................  2 1
Case-made from District Court of Cleveland County, Okla- 4

homa ...................................................................................  4 2
Appearances ....................................................................  4 2
Petition for writ of mandamus.....................................  7 2
Minute entry of issuance of alternative writ of

mandamus ....................................................................  14 6
Alternative writ of mandamus.......................................  15 7
Application for time to prepare and file response. . . .  22 11
Minute entry re extension of time to respond.............. 25 13
Order giving defendants additional time to prepare

and file response ........................................................  25 13
Answer ............................................................................  27 13
Minute entries re setting ease for trial.........................  36 19
Minute entries re trial, etc................................................ 37 19
Oral judgment of the Court........................................... 39 21
Plaintiff’s Exhibit 1—-Agreed statement of facts.......... 41 22
Plaintiff’s Exhibit 2—Agreed statement of facts.......... 46 24

J udd&Detweiler ( I nc.) , P rinters, W ashington, D.C.,September18, 1947. 

—2514



11 INDEX

Case-made from District Court of Cleveland County, Okla­
homa—Continued Original Print

Minute entry re denial of writ of mandamus.................. 47 25
Motion for new trial............................................................. 48 25
Minute entry re denial of motion for new trial, etc.. . 49 26
Order overruling motion for new trial.............................  50 26
Minute entry re extension of time to make and serve

case-made ........................................................................  52 27
Order extending time to make and serve case-made. . 52 27
Journal entry ......................................................................  55 28
Reporter’s certificate..............(omitted in printing).. 58
Clerk’s certificate......................(omitted in printing). . 62
Service of case-made........................................................  63 29
Certificate of attorneys to case-made.................................  64 30
Stipulation of attorneys to case-made.............................. 65 30
Certificate of trial judge to case-made.............................. 66 31

Stipulation extending time to file brief.....................................  68 32
Motion for oral argument......................................................... 72 33
Motion to advance..................................................................  74 34
Order assigning case............................................................... 76 35
Argument and submission ..................................................... 77 35
Opinion, Welch, J.................................................................... 78 35
Order correcting ........................................................................ 100 51
Note re mandate ........................................................................ 101 52
Application for leave to file petition for rehearing and

order granting same................................................................ 102 52
Order recalling mandate and extending time to file peti­

tion for rehearing.....................................................   105 53
Petition for rehearing............................................................. 106 54
Order denying petition for rehearing........................................  117 61
Note re mandate ........................................................................ 118 61
Clerk’s certificate............................. (omitted in printing). . 119

Order allowing certiorari............................................................ 120 61



1

[fols. 1-2] [File endorsement omitted]

IN THE SUPREME COURT OF THE STATE OF 
OKLAHOMA

No. 32756
A da L ois Sipuel, Plaintiff in Error,

vs.
Board of Regents of the U niversity of Oklahoma, George

L. Cross, Maurice H. Merrill, George Wadsack and Roy
Gittinger, Defendants in Error

Petition in E rror— Filed Aug. 17, 1946
The said Ada Lois Sipuel, plaintiff in error, complains of 

said defendants in error for that the said defendants in 
error on the 9th day of July, 1946, in the District Court of 
Cleveland County, Oklahoma, recovered a judgment, by the 
consideration of said court, against the said plaintiff in 
error, in a certain action then pending in the said court, 
wherein the said Ada Lois Sipuel was plaintiff and the said 
Board of Regents of the University of Oklahoma, George 
L. Cross, Maurice H. Merrill, George Wadsack and Roy 
Gittinger were defendants.
[fol. 3] The original case-made, duly signed, attested, and 
filed is hereunto attached, marked “ Exhibit A ,”  and made 
a part of this petition in error; and the said Ada Lois Sipuel 
avers that there is error in the said record and proceedings, 
in this, to wit:

(1) Error of the court in denying the petition of the 
plaintiff for a writ of mandamus.

(2) Errors of law occurring at the trial which were ac­
cepted to by the plaintiff.

Wherefore, plaintiff in error prays that the said judg­
ment so rendered may be reversed, set aside, and held for 
naught, and that a judgment may be rendered in favor of 
the plaintiff in error and against the defendants in error, 
upon the agreed statement of facts, and that the plaintiff 
in error be granted the relief prayed for in her petition 
and for such other relief as to the court may seem just.

Ada Lois Sipuel, by Amos T. Hall, Attorney for 
Plaintiff in Error.

1—2514



2

[fols. 4-6] I n the D istrict Court of Cleveland County, 
State of Oklahoma

No. 14807

A da L ois S ipuel, Plaintiff,

vs.

B oard of Regents of the U niversity of Oklahoma, George 
L. Cross, Maurice H. Merrill, George Wadsack and Roy 
Gittinger, Defendants.

Case Made
A ppearances:

Amos T. Hall, Tulsa, Oklahoma; Tliurgood Marshall, New 
York, New York; and Robert L. Carter, New York, New 
York, Attorneys for Plaintiff.

Mac Q. Williamson, Attorney General of Oklahoma; Fred . 
Hansen, First Assistant Attorney General of Oklahoma; 
Dr. Maurice H. Merrill, Acting Dean of the School of Law, 
University of Oklahoma; and Dr. John B. Clieadle, Profes­
sor of Law, University of Oklahoma, Attorneys for De­
fendants.

Hon. Ben T. Williams, District Judge.
Bob Hunter, Jr., Court Reporter.

[fol. 7] In the D istrict Court of Cleveland County, 
S tate of Oklahoma

[Title omitted]

[fol. 8] P etition for W rit of M andamus— Filed April 6,
1946

Now comes the plaintiff, Ada Lois Sipuel, and for her 
cause of action against the defendants and each of them 
alleges and states:

1. That she is a resident and citizen of the United States 
and of the State of Oklahoma, County of Grady, and city of 
Chickasha. She desires to study law in the School of Law 
of The University of Oklahoma, which is supported and



3

maintained by the taxpayers of the State of Oklahoma, for 
the purpose of preparing herself to practice law in the State 
of Oklahoma and for public service therein and has been 
arbitrarily refused admission.

2. That on January 14, 1946, plaintiff duly applied for 
admission to the first year class of the school of law of the 
University of Oklahoma. She then possessed and still pos­
sesses all the scholastic, moral and other lawful qualifica­
tions prescribed by the Constitution and statutes of the 
State of Oklahoma, by the Board of Regents of the Uni­
versity of Oklahoma and by all duly authorized officers and 
agents of the said University and the school of law for 
admission into the first year class of the school of law of the 
said University. She was then and still is ready and willing 
to pay all lawful uniform fees and charges and to conform 
to all lawful uniform rules and regulations established by 
lawful authority for admission to the said class. Plaintiff’s 
application was arbitrarily and illegally rejected pursuant 
to a policy, custom or usage of denying to qualified Negro 
applicants the equal protection of the laws solely on the 
ground of her race and color.

[fol. 9] 3. That 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 and is the only law school in 
Oklahoma that plaintiff is qualified to attend. Plaintiff de­
sires that she be admitted in the first year class of the school 
of law of the University of Oklahoma at the next regular 
registration period for admission to such class or at the 
first regular registration period after this cause has been 
heard and determined and upon her paying the requisite 
uniform fees and conforming to the lawful uniform rules 
and regulations for admission to such class.

4. That the defendant Board of Regents of the University 
of Oklahoma is an administrative agency of the State and 
exercises overall authority with reference to the regula­
tion of instruction and admission of students in the Univer­
sity, a corporation organized as a part of the educational 
system of the state and maintained by appropriations from 
the public funds of the State of Oklahoma. The defendant, 
George L. Cross, is the duly appointed, qualified and acting 
President of the said University and as such is subject to 
the authority of the Board of Regents as an immediate



4

agent governing and controlling the several colleges and 
schools of the said University. The defendant, Maurice 
H. Merrill, is the Dean of the school of law of the said 
University whose duties comprise the government of the 
said law school including the admission and acceptance of 
applicants eligible to enroll as students therein, including 
your plaintiff. The defendant, Roy Gittinger, is the Dean 
of admissions of the said University and the defendant 
George Wadsack is the Registrar thereof, both possessing 
[fol. 10] authority to pass upon the eligibility of applicants 
who seek to enroll as students therein, including your 
plaintiff. All of the personal defendants come under the 
authority, supervision, control and act pursuant to the 
orders and policies established by the defendant Board of 
Regents of the University of Oklahoma. All defendants 
herein are being sued in their official capacity.

5. That the school of law specializes in law and pro­
cedure which regulates the courts of justice and govern­
ment in Oklahoma and there is no other law school main­
tained by the public funds of the state where 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. The arbitrary 
and illegal refusal of defendants Board of Regents, George 
L. Cross, Maurice H. Merrill, George Wadsack and Roy 
Gittinger, to admit plaintiff to the first year of the said 
law school solely on the ground of race and color inflicts 
upon your plaintiff an irreparable injury and will place 
her 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 preparation in Okla­
homa law and procedure offered to white qualified appli­
cants in the law school of the University of Oklahoma.

6. That the requirements for admission to the first year 
class of the school of law are as follows: applicants must 
be at least eighteen (18) years of age and must have gradu­
ated from an accredited high school and completed two full 
years of academic college work. In addition applicants 
must have maintained at least one grade point for each 
semester carried in college or two grade points during the 
[fol. 11] last college year of not less than thirty semester 
hours. Plaintiff is over eighteen (18) years of age, has 
completed the full college course at Langston University, a



5

college maintained and operated by the State of Oklahoma 
for the higher education of its Negro citizens. Plaintiff 
maintained one grade point for each semester point car­
ried and graduated from the above named college with 
honors. She is of good moral character and has in all par­
ticulars met the qualifications necessary for admittance to 
the school of law of the University of Oklahoma which fact 
defendants have admitted. She is ready, willing and able 
to pay all lawful charges and tuition requisite to admission 
to the first year of the school of law and she is otherwise 
ready, willing and able to comply with all lawful rules and 
regulations requisite for admission therein.

7. 0  January 14, 1946, plaintiff applied for admission 
to the school of law of the University of Oklahoma and 
complied with all the rules and regulations entitling her to 
admission by filing with the proper officials of the University 
an official transcript of her scholastic record, Said trans­
cript was duly examined and inspected by the President, 
Dean of the School of Law and Dean of Admissions and 
Registrar of the University; defendants aforementioned, 
and found to be an official transcript as aforesaid entitling 
her to admission to the school of law of the University. 
Plaintiff was denied admission to the school of law solely 
on the ground of race and color in violation of the Constitu­
tion and laws of the United States and of the State of 
Oklahoma.

8. Defendants have established and are maintaining a 
policy, custom and usage of denying to qualified Negro 
[fob 12] applicants the equal protection of the laws by 
refusing to admit them into the law school of the University 
of Oklahoma solely because of race and color and have con­
tinued the policy of refusing to admit qualified Negro appli­
cants into the said school while at the same time admitting 
white applicants with less qualifications than Negro appli­
cants solely on account of race and color.

9. The defendants, George L. Cross, Maurice H. Merrill, 
George Wadsack and Roy Gittinger refuse to act upon 
plaintiff’s application and although admitting that plaintiff 
possesses all the qualifications necessary for admission to 
the first year in the school of law, refused her admission 
on the ground that the defendant Board of Regents had 
established a policy that Negro qualified applicants were not 
eligible for admission in the law school of the University of



6

Oklahoma solely because of race and color. Plaintiff ap­
pealed directly to the Board of Regents for admission to 
the first year class of the law school of said University 
and such board has so far refused to act in the premises.

10. Plaintiff further shows that she has no speedy, ade­
quate remedy at law and that unless a Writ of Mandamus 
is issued she will be denied the right and privilege of pur­
suing the course of instruction in the school of law as 
hereinbefore set out.

AVherefore, plaintiff being otherwise remediless, prays 
this Honorable Court to issue a Writ of Mandamus requir­
ing and compelling said defendants to comply with their 
statutory duty in the premises and admit the plaintiff in 
the school of law of the said University of Oklahoma and 
have such other and further relief as may be just and proper, 

[fol. 13] (Signed) Amos T. Hall, 107% N. Green­
wood Avenue, Tulsa, Oklahoma; Thurgood Mar­
shall, 20 West 40th Street, New York 18, N. Y.; 
Robert L. Carter, 20 West 40th Street, New York, 
18, N. Y., Attorneys for Plaintiff.

Duly sworn to by Ada Sipuel. Jurat omitted in printing.

[fol. 14] [File endorsement omitted]

I n D istrict Court of Cleveland County

M inute E ntry of Issuance of A lternative W rit of
M andamus

4-9-46— C /M : Alternative writ of Mandamus issued to 
defendants to admit Plaintiff to Law School of University 
of Oklahoma or appear April 26, 1946, at 10 o ’clock A.M., 
and show cause as per Alternative Writ of Mandamus.

Of the Records of Cleveland County, State of Oklahoma, 
in District Court. Civil Appearance Docket No. 24, Page 
272.



7

[fol. 15] In D istrict Court of Cleveland County 

[Title omitted]

Alternative W rit of M andamus and R eturn—April 9,
1946

On this the 9th. day of April, 1946, upon due and proper 
application of the plaintiff showing the following facts, 
to-wit:

1. That she is a resident and citizen of the United States 
and of the State of Oklahoma, County of Grady, and city 
of Chickasha. She desires to study law in the School of 
Law of the University of Oklahoma, which is supported and 
maintained by the taxpayers of the State of Oklahoma, for 
the purpose of preparing herself to practice law in the 
State of Oklahoma and for public service therein and has 
been arbitrarily refused admission.

2. That on January 14, 1946, plaintiff duly applied for 
admission to the first year class of the school of law of the 
University of Oklahoma. She then possessed and still 
possesses all the scholastic, moral and other lawful qualifica­
tions prescribed by the Constitution and Statutes of the 
State of Oklahoma and by all duly authorized officers and 
agents of the said University and the school of law for ad­
mission into the first year class of the school of law of the 
[fol. 16] said University. She was then and still is ready 
and willing to pay all lawful uniform fees and charges and 
to conform to all lawful rules and regulations established 
by lawful authority for admission to the said class. Plain­
tiff’s application was arbitrarily and illegally rejected pur­
suant to a policy, custom or usage of denying to qualified 
Negro applicants the equal protection of the laws solely 
on the ground of her race and color.

3. That 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 and is the only law school in Oklahoma 
that plaintiff is qualified to attend. Plaintiff desires that 
she be admitted in the first year class of the school of law 
of the University of Oklahoma at the next regular registra­
tion period for admission to such class or at the first regular 
registration period after this cause has been heard and de­
termined and upon her paying the requisite uniform fees

2—2514



8

and conforming to the lawful uniform rules and regulations 
for admission to such class.

4. That the defendant Board of Regents of the University 
of Oklahoma is an administrative agency of the State and 
exercises overall authority with reference to the regulation 
of instruction and admission of students in the University, 
a corporation organized as a part of the educational 
system of the State and maintained by appropriations 
from the public funds of the State raised by taxation from 
the citizens and taxpayers of the State of Oklahoma. The 
defendant, George L. Cross, is the duly appointed, qualified 
and acting President of the said University and as such is 
subject to the Authority of the Board of Regents as an 
immediate agent governing and controlling the several col­
leges and schools of the said University. The defendant, 
[fol. 17] Maurice H. Merrill, is the Dean of the school of 
law of the said University whose duties comprise the govern­
ment of the said law school including the admission and ac­
ceptance of applicants eligible to enroll as students therein, 
including your plaintiff. The defendant, Roy Gittinger, is 
the Dean of Admissions of the said University and the 
defendant George Wadsack is the Registrar thereof, both 
possessing authority to pass upon the eligibility of appli­
cants who seek to enroll as students therein, including your 
plaintiff. All of the personal defendants come under the 
authority, supervision, control and act pursuant to the 
orders and policies established by the defendant Board of 
Regents of the University of Oklahoma. All defendants 
herein are being sued in their official capacity7.

5. That the school of law specializes in law and procedure 
which regulates the courts of justice and government in 
Oklahoma and there is no other law school maintained by 
the public funds of the state where 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. The arbitrary and 
illegal refusal of defendants Board of Regents, George L. 
Cross, Maurice H. Merrill, George Wadsack and Roy Git­
tinger, to admit plaintiff to the first year of the said 
law school solely on the ground of race and color inflicts 
upon plaintiff an irreparable injury and will place her at 
a distinct disadvantage at the bar of Oklahoma and in public 
service of the aforesaid state with persons who have had



9

the benefit of the unique preparation in Oklahoma law and 
procedure offered to white qualified applicants in the law 
school of the University of Oklahoma.
ffol. 18] 6. That the requirements for admission to the
first year class of the school of law are as follows: applicants 
must be at least eighteen (18) years of age, and must have 
graduated from an accredited high school and completed 
two full years of academic college work. In addition appli­
cants must have maintained at least one grade point for each 
semester carrier — and graduated from the above named 
college with honors. She is of good moral character and 
has in all particulars met the qualifications necessary for 
admittance to the school of law of the University of Okla­
homa which fact defendants have admitted. She is ready, 
willing and able to pay all lawful charges and tuition 
requisite to admission to the first year of the school of law 
and she is otherwise ready, willing and able to comply 
with all lawful rules and regulations requisite for admission 
therein.

7. On January 14, 1946, plaintiff applied for admission 
to the school of law of the University of Oklahoma and 
complied with all the rules and regulations entitling her to 
admission by filing with the proper officials of the University 
an official transcript of her scholastic record. Said trans­
cript was duly examined and inspected by the President, 
Dean of the School of Law and Dean of Admissions and Re­
gistrar of the University; defendants aforementioned, and 
found to be an official transcript as aforesaid entitling 
her to admission to the school of law of the University. 
Plaintiff was denied admission to the school of law solely 
on the ground of race and color in violation of the Constitu­
tion and laws of the United States and of the State of 
Oklahoma.
[fol. 19] 8. Defendants have established and are main­
taining a policy, custom, and usage of denying to qualified 
Negro applicants the equal protection of the laws by refus­
ing to admit them into the law school of the University of 
Oklahoma solely because of race and color and have con­
tinued the policy of refusing to admit qualified Negro appli­
cants into the said school while at the same time admitting 
white applicants with less qualifications than Negro appli­
cants solely on account of race and color.



10

9. The defendants, George L. Cross, Maurice H. Merrill, 
George Wadsack and Roy Gittinger refuse to act upon 
plaintiff’s application and although admitting that plaintiff 
possesses all the qualifications necessary for admission to 
the first year in the school of law, refused her admission on 
the ground that the defendant Board of Regents had estab­
lished a policy that Negro qualified applicants were not 
eligible for admission in the law school of the University 
of Oklahoma solely because of race and color. Plaintiff ap­
pealed directly to the Board of Regents for admission to 
the first year class of the law school of said University and 
such board has so far refused to act in the premises.

10. Plaintiff further shows that she has no speedy, ade­
quate remedy at law and that unless a Writ of Mandamus 
is issued she will be denied the right and privilege of pur­
suing the course of instruction in the school of law as herein­
before set out.

Therefore, the Court being fully advised in the premises 
finds that an Alternative Write of Mandamus should be 
issued herein.

It is therefore ordered, considered and adjudged that all 
of the said defendants, Board of Regents of the University 
[fol. 20] of Oklahoma, George L. Cross, Maurice H. Merrill, 
and George Wadsack, each and all of them, are hereby com­
manded that immediately after receipt of this writ, you 
admit into the School of Law of the said University of Okla­
homa, the said plaintiff, Ada Lois Sipuel, or that you and 
each and all of you, the said defendants, appear before this 
court at 10:00 o ’clock A.M., on the 26th day of April, 1946, 
to show cause for your refusal so to do and that you then 
and there return this writ together with all proceedings 
thereof.

(Signed) Ben T. Williams, Judge of the District 
Court.

Witness the signature of Honorable Ben T. Williams, 
Judge of the said Court and seal affixed to the 9th day of 
April, 1946.

(Signed) Dess Burke, Court Clerk. (Seal)
State or Oklahoma,

Cleveland County, ss :
I received this alternative Writ of Mandamus this 9tli 

day of April, 1946, and served the same on the persons



11

named therein as defendants on the date and in the manner 
following to-wit: On the Board of Regents by serving Emil 
R. Kraettli, he being the Secretary to the Board of Regents; 
On George L. Cross, President of the University of Okla- 
home; On Maurice II. Merrill, Dean of Law, University of 
Oklahoma, and on Roy Gittinger, Dean of Admissions, Uni­
versity of Oklahoma; on George Wadsack, Registrar, Uni­
versity of Oklahoma, by delivering to each of the above 
named individually and in their official capacity as above set 
forth, personally, a full- true and correct copy of the fore­
going alternative Writ of Mandamus on the 10th day of 
April, 1946, in Norman, Cleveland County, Oklahoma.

[fol. 21] Key Durkee, County Sheriff. By (Signed) 
Geo. N. Jones, Deputy Sheriff.

Sheriff’s Fees

Serving Summons, first person...................................... $ .50
4 additional persons.......................................................... 1.00
5 copies of summons..........................................................  1.25
Mileage: 10 Miles.............................................................. 1.00

Total ....................................................................... $3.75

Endorsed on front as follows: Filed in District Court, 
Cleveland County, Okla., Apr. 10, 1946. (Signed) Dess 
Burke, County Clerk. C.J. 31, P. 4, 5, 6.

Endorsed on back as follows: Alternative Writ of Man­
damus. Writ allowed this 9th day of April, 1946. (Signed) 
Ben T. Williams, Judge of District Court.

[fol. 22] I n  the D istkict Court of Cleveland County,
State of Oklahoma

[Title omitted]

Application for T ime to Prepare and F ile R esponse—  
Filed April 23, 1946

Comes now the above named defendants, and each of 
them, and respectfully inform the court that on April 9,



12

1946, an alternative writ of mandamus was issued in the 
above case in which defendants were commanded

“ immediately after receipt of this writ, you admit into 
the School of Law of the said University of Oklahoma, 
the said plaintiff, Ada Lois Sipuel, or that you and 
each and all of you, the said defendants, appear before 
this court at 10:00 o ’clock A.M. on the 26th day of 
April, 1946, to show cause for your refusal so to do and 
that you then and there return this writ together with 
all proceedings thereof.’ ’

That by reason of the fact that it will be necessary for 
the Attorney General of Oklahoma, as attorney for the 
above named defendants, to consult with the Oklahoma 
[fol. 23] Board of Regents for Higher Education, as well 
as the Board of Regents of the University of Oklahoma, 
together with the Governor of the State, on the important 
questions raised by this litigation before preparing and 
filing an answer or response to plaintiff’s petition and said 
alternative writ of mandamus, it will be necessary for the 
court to grant defendants twenty (20) days additional 
time within which to prepare and file said answer or re­
sponse.

That telegraphic notice of this application was given by 
the Attorney General on April 20, 1946, to Mr. Amos T. 
Hall, one of the attorneys of record for the plaintiff herein, 
who on the same date acknowledged by telegram to the 
Attorney General that he had received said notice and that 
“ in view of the circumstances set out in your message you 
are advised that we offer no objection to the court granting 
you twenty (20) days additional time * *

Wherefore, premises considered, the above named de­
fendants and each of them, respectfully ask the court to 
grant them twenty (20) days additional time within which to 
prepare and file an answer or response to plaintiff’s peti­
tion and alternative writ of mandamus in the above cause.

(Signed) Mac Q. Williamson, Attorney General of 
Oklahoma; (Signed) Fred Hansen, First Assistant 
Attorney General, Attorneys for Defendants.

[fol. 24] [File endorsement omitted,]



13

[fol. 25] I n District Court of Cleveland County

Minute E ntry re E xtension of T ime to R espondent

4-23-46—C/M : Defendants granted 20 days additional 
time to respond to alternative writ as per order.

Of the Records of Cleveland County, State of Oklahoma, 
in District Court. Civil Appearance Docket No. 24, 
Page 272. ______

In the District Court of Cleveland County, State of
Oklahoma

[Title omitted]

Order Giving Defendants A dditional T ime to Prepare 
and F ile R esponse— April 23,1946

Now on this the 23rd day of April, 1946, the application 
of defendants for twenty (20) days additional time within 
which to prepare and file an answer or response to plaintiff’s 
petition and alternative writ of mandamus in the above 
cause came on to be heard, after due notice, in̂  regular 
[fol. 26] order; and the court having examined said appli­
cation and the allegations set forth therein finds that said 
application should be granted.

Wherefore, premises considered, it is ordered and de­
creed by the court that defendants and each of them have 
twenty (20) days additional time within which to prepare 
and file their answer or response to plaintiff’s petition and 
alternative Avrit of mandamus, to wit, until Thursday, 
May 16, 1946, inclusive.

(Signed) Ben T. Williams, Judge.

[File endorsement omitted.]

[fol. 27] I n the D istrict Court of Cleveland County, 
State of Oklahoma

[Title omitted]

A nsaver— F iled May 14, 1946

Comes now the above-named defendants, and each of 
them, and in ansAver to the petition of plaintiff and the



14

alternative writ of mandamus issued herein, allege and
state:
[fol. 28] 1. That the material allegations of fact set forth
in plaintiff’s petition and in said alternative writ of man­
damus are not sufficient to constitute a cause of action in 
favor of plaintiff and against defendants, or either of them.

2. That defendants, and each of them, deny the material 
allegations of fact set forth in Paragraphs 1 to 10, inclu­
sive, of plaintiff’s petition and in said alternative writ of 
mandamus (said paragraphs being identical in said petition 
and writ both as to number and phraseology), except such 
allegations as are hereinafter alleged or admitted.

3. Defendants admit the material allegations of fact set 
forth in Paragraph 1 of said petition and writ, except the 
allegation that plaintiff was “ arbitrarily refused admis­
sion”  to the School of Law of the University of Oklahoma.

4. Defendants admit the material allegations of fact set 
forth in Paragraph 2 of said petition and writ, except the 
allegation that plaintiff possessed all “ other lawful quali­
fications”  for admission to the first year class of the School 
of Law of the University of Oklahoma, and the allegation 
that plaintiff’s application for admission to said class was 
“ arbitrarily and illegally rejected.”

5. Defendants admit the material allegations of fact set 
forth in Paragraph 3 of said petition and writ, except the 
allegation which implies that plaintiff is “ qualified to at­
tend”  the School of Law of the University of Oklahoma.

6. Defendants admit the material allegations of fact set 
forth in Paragraph 4 of said petition and writ.

7. Defendants admit the material allegations of fact set 
forth in Paragraph 5 of said petition and writ, except the 
[fol. 29] allegation which implies that the refusal of de­
fendants to admit plaintiff to the first year class of the 
School of Law of the University of Oklahoma was an “ arbi­
trary and illegal refusal.”

8. Defendants admit the material allegations of fact set 
forth in Paragraph 6 of said petition and writ, except the 
allegation that plaintiff has “ in all particulars met the 
qualifications necessary for admittance to the School of 
Law of the University of Oklahoma which fact defendants



15

have admitted,”  and in this connection allege that while 
plaintiff is “ scholastically qualified for admission to the 
Law School of the University of Oklahoma”  (which fact 
has been admitted by defendant), she does not have the 
qualifications necessary for admittance at said school for 
the reason that under the constitutional and statutory pro­
visions of this State, hereinafter cited and reviewed (Para­
graphs 14 to 21 hereof), only white persons are eligible for 
admission to said school.

9. Defendants admit the material allegations of fact set 
forth in Paragraph 7 of said petition and writ, but deny the 
conclusion of law therein that the refusal of defendants to 
admit plaintiff to the School of Law of the University of 
Oklahoma on the ground of race and color was “ in viola­
tion of the Constitution and laws of the United States and 
of the State of Oklahoma.”

10. Defendants admit the material allegations of fact set 
forth in Paragraph 8 of said petition and writ, but deny the 
conclusion of law therein that the “ policy, custom and 
usage”  of defendants in refusing to admit negro applicants, 
otherwise qualified, to the School of Law of the University 
[fol. 30] of Oklahoma while continuing to admit white appli­
cants, otherwise qualified, is a denial to said negro appli­
cants of “ the equal protection of the laws.”

11. Defendants admit the material allegations of fact set 
forth in Paragraph 9 of said petition and writ, except the 
allegation which implies that the defendants, George L. 
Cross, Maurice H. Merrill, George Wadsack and Roy Git- 
tinger, have admitted that plaintiff “ possesses all the 
qualifications necessary for admission to the first year in 
the school of law”  of the University of Oklahoma, and the 
allegation which implies that plaintiff was denied admission 
by defendants to said school solely ‘ ‘ on the ground that the 
defendant, Board of Regents, had established a policy that 
negro qualified applicants were not eligible for admission 
in the law school of the University of Oklahoma solely 
because of race and color,”  and in this connection allege 
that plaintiff was denied admission by said defendants to 
said school not only by virtue of said policy, but by reason 
of the constitutional and statutory provisions of the State 
of Oklahoma, hereinafter cited and reviewed (Paragraphs 
14 to 21 hereof).

3—2514



16

12. Defendants deny the conclusions of law set forth in 
Paragraph 10 of said petition and writ.

13. Defendants, and each of them, allege and admit that 
the plaintiff, Ada Lois Sipuel, a colored or negro citizen and 
resident of the United States of America and the State of 
Oklahoma, duly and timely applied on January 14, 1946, 
for admission to the first year class of the School of Law 
of the University of Oklahoma for the semester beginning 
January 15, 1946, and that she then possessed and still 
[fol. 31] possesses all the scholastic and moral qualifica­
tions required for such admission by the constitution and 
statutes of this State and by the Board of Regents of the 
University of Oklahoma, but deny that she was then pos­
sessed and still possesses all “ other qualifications”  re­
quired by said constitution, statutes and board, for the 
reason that under the public policy of this State announced 
in the constitutional and statutory provisions hereinafter 
cited and reviewed (Paragraphs 14 to 21 hereof), colored 
persons are not eligible for admission to State school estab­
lished for white persons, such as the School of Law of the 
University of Oklahoma.

14. That Section 3, Article 13 of the Constitution of 
Oklahoma provides, in part, that:

“ Separate Schools for white and colored children 
with like accommodation shall be provided by the 
Legislature and impartially maintained.”

15. That 70 0. S. 1941 § 363 provides in part that:
“ All teachers of the negro race shall attend separate 

institutes from those for teachers of the white 
race, * * *.”

16. That 70 0. S. 1941 § 455 makes it a misdemeanor, 
punishable by a fine of not less than $100.00 nor more than 
$500.00, for

“ Any person, corporation or association of persons 
to maintain or operate any college, school or institu­
tion of this State where persons of both white and 
colored races are received as pupils for instruction,”

and provides that each day same is so maintained or 
operated “ shall be deemed a separate offense.”



17

[fol. 32] 17. That 70 0. S. 1941 § 456 makes it a misde­
meanor, punishable by a fine of not less than $10.00 no- more 
than $50.00, for any instructor to teach

“ in any school, college or institution where members 
of the white race and colored race are received and en­
rolled as pupils for instruction,”

and provides that each day such an instructor shall continue 
to so teach “ shall be considered a separate offense.”

18. That 70 O. S. 1941 § 457 makes it a misdemeanor, pun­
ishable by a fine of not less than $5.00 nor more than $20.00, 
for

“ any white person to attend any school, college or 
institution, where colored persons are received as 
pupils for instruction,”

and provides that each day such a person so attends “ shall 
be deemed a distinct and separate offense.”

19. That 70 O. S. 1941 § § 1591, 1592 and 1503, in effect, 
provide that if a colored or negro resident of the State of 
Oklahoma who is morally and educationally qualified to 
take a course of instruction in a subject taught only in a 
State institution of higher learning established for white 
persons, the State will furnish him like educational facili­
ties in comparable schools of other States wherein said 
subject is taught and in which said colored or negro resi­
dent is eligible to attend.

20. That the material part of Senate Bill No. 9 of the 
Twentieth Oklahoma Legislature (same being the general 
departmental appropriation bill for the fiscal years ending 
June 30, 1946 and June 30, 1947), which was enacted to 
finance the provisions of 70 O. S. 1941 § § 1591, 1592 and 
1593, supra, is as follows:

[fol. 33] State B oard of E ducation

Fiscal Year Fiscal Year 
ending ending

June 30,1946 June 30,1947
“For payment of Tuition Fees and transpor­

tation for certain persons attending insti- 
tions outside the State of Oklahoma as 
provided by law $15,000.00 $15,000.00.”



18

21. That 70 0. S. 1941 §§ 1451 to 1509, as amended in 
1945, established a State institution of higher learning now 
known as “ Langston University”  for “ male and female 
colored persons”  only, which institution, however, does not 
have a school of law.

22. That the constitutional and statutory provisions of 
Oklahoma, heretofore cited and reviewed (Paragraphs 14 
to 21 hereof), have been uniformly construed by defendants 
and their predecessors as prohibiting the admission of 
persons of the colored or negro race to the School of Law 
of the University of Oklahoma, and pursuant to such inter­
pretation it has been their administrative practice to admit 
only white persons, otherwise qualified, to said school.

23. That petitioner has not applied, nor in her petition 
and/or alternative writ of mandamus alleged that she has 
applied, to the Board of Regents of Higher Education of 
this State for it, under authority of Article 13a of the Con­
stitution of Oklahoma, 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 Univer­
sity, and as one of the courses of study, thereof, so that 
she will be able as a negro citizen of the United States and 
[fol. 34] the State of Oklahoma to attend said school without 
violating the public policy of said State as evidenced by 
the constitutional and statutory provisions of Oklahoma 
heretofore cited and reviewed (Paragraphs 14 to 21 here­
of).

24. That by reason of the foregoing constitutional and 
statutory provisions and administrative interpretation and 
practice, it cannot properly be said that “ the law specifically 
enjoins”  upon defendants, or either thereof (within the 
meaning of 12 0. S. 1941 §§1451 to 1462, inclusive, relating 
to “ Mandamus” ), the duty of admitting plaintiff to the 
School of Law of the University of Oklahoma.

Wherefore, premises considered, defendants, and each 
of them, respectfully ask the court to decline to issue the 
writ of mandamus prayed for in this cause, that plaintiff 
take nothing by her petition, and that defendants recover 
their cost herein expended.

Mac Q. Williamson, Attorney General of Oklahoma. 
(Signed) Fred Hansen, First Assistant Attorney 
General, Attorneys for Defendants.



19

Duly sworn to by George L. Cross. Jurat omitted in print­
ing.

[fol. 35] [File endorsement omitted.]

[fol. 36] I n D istrict Court of Cleveland County

M inute E ntries re Setting Case for T rial

5-21-46— C/M : Cause set for trial Friday, May 31, 1946, 
at 10:00 o ’clock A. M., by agreement and clerk ordered to 
notify counsel.

Of the Records of Cleveland County, State of Oklahoma, 
in District Court. Civil Appearance Docket No. 24, Page 
272.

Thereafter, and under date of May 31st, 1946, the Clerk 
of the District Court entered herein a Minute, same appear­
ing in words and figures as follows, to-wit:

5- 31-46—C/M : Cause continued at request of plaintiff’s 
counsel to be reset by agreement.

Of the Records of Cleveland County, State of Oklahoma, 
in District Court. Civil Appearance Docket No. 24, Page 
272.

Thereafter, and under date of June 11th, 1946, the Clerk 
of the District Court entered herein a Minute, same appear­
ing in words and figures as follows, to-wit:

6- 11-46—C /M : Cause set for trial by agreement of coun­
sel for Tuesday, July 9, 1946, at 10:00 o ’clock A. M.

Of the Records of Cleveland County, City of Oklahoma, 
in District Court. Civil Appearance Docket No. 24, Page 
272.

[fol. 37] I n D istrict Court of Cleveland County

M inute E ntries re T rial, etc.

Now on this the 9th day of July, 1946, the above styled 
and numbered cause came regularly on for trial before the



2 0

Honorable Ben T. Williams, District Judge in and for the 
Twenty-First Judicial District, State of Oklahoma, upon 
plaintiff’s petition for a Writ of Mandamus filed herein.

The plaintiff, Ada Louis Sipuel, appeared in person 
and hy counsel, Amos T. Hall; and the defendants, Board 
of Regents of the University of Oklahoma, et al., appeared 
by counsel, Fred Hansen, First Assistant Attorney General 
of Oklahoma, and Dr. Maurice H. Merrill, Acting Dean of 
the School of Law, University of Oklahoma, and both par­
ties announced ready for trial.

Whereupon, the following proceedings were had and 
entered herein, to-wit:

Thereupon, Mr. Hall, Counsel for Plaintiff, offered into 
evidence Plaintiff’s Exhibit “ 1” , being a written stipulation 
of facts, signed by counsel, and there being no objections, 
the Court ordered same marked Plaintiff’s Exhibit “ 1”  and 
introduced in evidence.

Thereupon, Mr. Hall, Counsel for Plaintiff, offered into 
evidence Plaintiff’s Exhibit “ 2,”  being a written stipula­
tion of facts, and there being no objections, the Court or­
dered same marked Plaintiff’s Exhibit “ 2”  and introduced 
in evidence.

And Thereupon the Plaintiff rested and the Defendants 
rested.

Whereupon, there being no further evidence or testimony 
in this case, Mr. Hall, of Counsel for Plaintiff, made the 
opening argument on behalf of plaintiff; Mr. Hansen and 
Dr. Merrill, of Counsel for Defendants, made the argument 
on behalf of the defendants; and Mr. Hall made the closing 
argument to the Court on behalf of the plaintiff.
[fol. 38] Thereafter, and at the conclusion of the argu­
ment in this case the following remarks were made by the 
Court and Counsel for Plaintiff, to-wit:

By the Court: Let the record show that at the conclusion 
of the argument in this case the Court suggests to Mr. Hall 
that while the Court is not suggesting that Mr. Hall’s re­
marks might be improper in any way, still the law, in the 
Court’s estimation, presumes that all Courts have the cour­
age to do their duty and certifies to the record that to the 
best of his understanding and ability that this Court feels 
that he has the courage to do his duty in this or any other 
judicial proceeding.



2 1

By Mr. Hall, of Counsel for plaintiff: If the Court please, 
I do not mean to imply that this Court hasn’t the courage 
to do his duty. In cases of this kind it does require courage, 
but I feel sure that if your honor holds and finds and renders 
judgment against us that would not indicate to me at all 
that you do not have the courage. I didn’t mean that this 
Court doesn’t have the courage, but all courts must have 
the courage to give the the colored people their rights. They 
have been to the Legislature and to the Board of Regents 
and haven’t received their rights, and the courts are the 
last resort. I realize that we have dropped a hot potato 
in the court’s lap, and whatever the judgment is, we know 
it will be the court’s honest decision and judgment. I am 
sorry that the Court misunderstood me as I had no inten­
tion of inferring that your Honor didn’t have the courage 
to render a just decision in this case.
[fol. 39] Thereupon, the Court ordered the hearing in this 
cause recessed to the hour of 7 :30 P. M., this date.

And Thereafter, at the hour of 7 :45 P. M. the Court 
reconvened and the Court made and entered herein the 
following judgment, to-wit:

I n D istrict Court of Cleveland County

Oral Judgment of the Court

By the Court: Gentlemen, the Court adopts the view ad­
vanced by Mr. Hansen in his argument wherein, among other 
things, we find this quotation from a Kansas case (Sharp­
less vs. Buckles, 70 Pac. 886):

“ Mandamus will not lie to require a county canvass­
ing board to recanvass returns and exclude from the 
count certain votes because cast and returned under a 
law that is claimed to be unconstitutional, since the 
determination of such question is not a duty imposed 
upon the board, nor within its power.”

And the quotation found in an Indiana case (State ex rel. 
Hunter vs. Winterrowd (Ind.), 92 N. E. 650):

“ It is quite a different thing to hold that such an 
officer must at his peril disobey the specific commands 
of a law duly enacted and promulgated, at the behest



22

of any one who may be of the opinion that such law is 
unconstitutional. The proper function of mandamus 
is to enforce obedience to law, and not disobedience, 
or even to litigate its validity.”

And also the quotation found in a Connecticut case (Corn- 
ley vs. Boyle, 162 A. 26):

[fol. 40] ‘ ‘ The court properly refused to consider con­
stitutionality of ordinance. Court in such case properly 
refused to consider the constitutionality of the ordi­
nance, whether such conclusion be based upon the trial 
court’s valid exercise of its discretion in refusing the 
building permit or upon the broader ground that it was 
not the province of that court to pass upon the ques­
tion.”

The Court heard with interest the argument of Dr. Mer­
rill, but does not pass either pro or con upon the validity 
of such argument.

The application for mandamus is denied and exceptions 
allowed.

[fol. 41] In the D istrict Court of Cleveland County, 
State of Oklahoma

[Title omitted]

P laintiff ’s E xhibit ‘ ‘ 1 ”  A greed S tatement of F acts

1. That the plaintiff is a resident and citizen of the United 
States and of the State of Oklahoma, County of Grady and 
City of Chiekaslia; that she desires to study law in the 
School of Law in the University of Oklahoma for the pur­
pose of preparing herself to practice law in the State of 
Oklahoma.

2. That 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.

3. That the Board of Regents of the University of Okla­
homa is an administrative agency of the State and exer­
cising overall authority with reference to the regulation 
of instruction and admission of students in the University;



23

that the University is a part of the educational system of 
the State and is maintained by appropriations from the 
public funds of the State raised by taxation from the citizens 
[fol. 42] and taxpayers of the State of Oklahoma; that the 
School of Law of Oklahoma University specializes in law 
and procedure which regulates the Court of Justice and 
Government in Oklahoma; that there is no other law school 
maintained by the public funds of the State where the plain­
tiff 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 afore­
said State with persons who have had the benefit of the 
unique preparation in Oklahoma law and procedure 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.

4. That the plaintiff 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.

5. That the plaintiff duly and timely applied for admis­
sion to the first year class of the School of Law of the 
University of Oklahoma on January 14, 1946, for the 
semester beginning January 15, 1946 and that she then 
possessed and still possesses all the scholastic and moral 
qualifications required for such admission.

6. That on January 14, 1946, when plaintiff applied for 
admission to the said school of law, she complied with all 
[fol. 43] of the rules and regulations entitling her to ad­
mission by filing with the proper officials of the University, 
an official transcript of her scholastic record; that said 
transcript was duly examined and inspected by the Presi­
dent, Dean of Admissions and Registrar of the University 
and was found to be an official transcript, as aforesaid, 
entitling her to admission to the School of Law of the said 
University.

7. That under the public policy of the State of Oklahoma, 
as evidenced by the constitutional and statutory provisions 
referred to in defendants’ answer herein, plaintiff was

4—2514



24

denied admission to the School of Law of the University of 
Oklahoma solely because of her race and color.

8. That the plaintiff at the time she applied for admission 
to the said law 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.

9. That plaintiff has not applied to the Board of Regents 
of Higher Education of the State of Oklahoma for it, under 
authority of Article 13-A of the Constitution of Oklahoma, 
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.

Dated this 8th day of July, 1946.
[fols. 44-45] (Signed) Amos T. Hall, 107]/2 North 

Greenwood Ave., Tulsa, Oklahoma; Tliurgood Mar­
shall, 20 AVest 40th Street, New York 18, New York; 
Robert L. Carter, 20 AVest 40th Street, New York 
18, New York, Attorneys for Plaintiff.

(Signed) Mac Q. AVilliamson, Attorney General of 
Oklahoma; (Signed) Fred Hansen, First Assistant 
Attorney General; Maurice H. Merrill, Attorneys 
for Defendants.

[fol. 46] In D istrict Court op Cleveland County

Plaintiff 's E xhibit “ 2 ” — A greed Statement of F acts

It is hereby stipulated and agreed by and between counsel 
for plaintiff and defendants that the court may consider the 
following as an admitted fact:

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 allocation for that purpose; that in 
order to open up and operate a law school for negroes in 
this state, it will Tie necessary for the board to either with­
draw existing allocations, procure moneys, if the law per-



25

mits from the Governor’s contingent fund, or make an 
application to the next Oklahoma legislature for funds 
sufficient to not only support the present institutions of 
higher education 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 opening 
up and operation of a law school in the State for negroes 
and has never been requested to do so.

[fol. 47] In D istrict Court of Cleveland County 

Minute E ntry Re D enial of W rit of Mandamus

7-9-46— C/M : Evidence submitted by written stipulation, 
argument heard. Peremptory Writ of Mandamus denied as 
per Journal Entry.

Of the Records of Cleveland County, State of Oklahoma, 
in District Court. Civil Appearance Docket No. 24, Page 
272.

[fol. 48] I n the D istrict Court of Cleveland County, 
State of Oklahoma

[Title omitted]

Motion for N ew T rial—Filed July 11, 1946

Comes now the plaintiff and moves the Court to vacate 
the judgment rendered in this cause on the 9th day of 
July, 1946, and to grant a new trial herein for the reasons 
hereinafter set out which materially affect the substantial 
rights of the Plaintiff:

(1) Error of the Court in denying the petition of the 
plaintiff for a writ of mandamus.

(2) Errors of law occurring at the trial which were ex­
cepted to by the plaintiff.

Wherefore, plaintiff prays the Court to vacate, set aside 
and hold naught the judgment heretofore rendered in this 
cause and to grant a new trial herein.

(Signed) Amos T. Hall, Attorney for Plaintiff.

[File endorsement omitted.]



[fol. 49] In D istrict Court of Cleveland County 

M inute E ntry re Denial of M otion for N ew T rial, etc.

7-12-46— C/M : Motion for new trial comes on by agree­
ment of the parties, is considered and overruled and excep­
tions allowed. Plaintiff gives notice in open Court of her 
intentions to appeal to the Supreme Court of the State of 
Oklahoma and asks that such intentions be noted upon the 
Minutes, Dockets and Journals of the Court, and it is so 
ordered and done. Plaintiff, praying an appeal but no ex­
tension of time, is granted 15 days to make and serve case- 
made defendants to have 3 days thereafter to suggest 
amendments, same to be settled and signed upon 3 days 
notice in writing by either party.

Of the Records of Cleveland County, State of Oklahoma, 
in District Court. Civil Appearance Docket No. 24, Page 
273.

2 6

[fol. 50] I n the D istrict Court of Cleveland County, 
State of Oklahoma

[Title omitted]

Order Overruling M otion for New  T rial— July 24, 1946

Now on this 12th day of July, 1946, there comes on before 
me, by agreement of the parties, the hearing on the plain­
tiff’s motion for new trial in the above entitled cause. Upon 
consideration of the same, the court is of the opinion that 
the motion should be overruled.

It is, therefore, ordered, adjudged, and decreed that 
the motion for new trial filed by the plaintiff herein be, and 
the same is, hereby overruled, to which the plaintiff excepts 
and which exception is allowed.
[fol. 51] Thereupon, plaintiff gives notice in open court 
of her intentions to appeal to the Supreme Court of the 
State of Oklahoma and asks that such intentions he noted 
upon the minutes, dockets, and journals of the court, and it 
is so ordered and done.

Plaintiff, praying an appeal, but no extension of time, is 
granted fifteen (15) days to make and serve case-made, the 
defendants to have three (3) days thereafter to suggest



27

amendments and the same to be settled and signed upon 
three (3) days notice in writing by either party.

(Signed) Ben T. Williams, District Judge.
[Pile endorsement omitted.]

[fol. 52] I n D istrict Court of Cleveland County

Minute E ntry re E xtension of T ime to M ake and Serve
Case-M ade

7-24-46— C/M : Plaintiff granted extension of 15 days to 
make and serve case-made, defendants to have 3 days there­
after to suggest amendments, same to be settled and signed 
upon 3 days notice in writing by either party.

Of the Records of Cleveland County, State of Oklahoma, 
in District Court. Civil Appearance Docket No. 24, Page 
273.

In the D istrict Court of Cleveland County, State of
Oklahoma

[Title omitted]

Order E xtending T ime to M ake and Serve Case-M ade—
August 2, 1946

[fols. 53-54] Now on this the 24th day of July, 1946, the 
above styled and numbered cause came regularly on for 
hearing upon the oral application of the Plaintiff for an 
extension of time within which to prepare and serve the 
case-made herein, and it being shown to this Court that the 
Plaintiff has not. had sufficient time under the prior order 
of this Court within which to prepare and serve the case- 
made in this case because the Court Reporter has been busy 
in actual court room work and work on case-mades ordered 
prior to the time the case-made herein was ordered, and has 
not had sufficient time to complete this case-made, this Court 
finds that an extension of time should be granted herein.

It is therefore hereby ordered, upon good cause being 
shown, that the plaintiff be, and he is hereby allowed fifteen 
(15) days time, in addition to the time heretofore allowed 
by prior order of this Court, within which to prepare and



2 8

serve the case-made in this case, and the defendants are al­
lowed three (3) days thereafter within which to suggest 
amendments to said case-made, and said case-made to be 
signed and settled upon three (3) days written notice by 
either party.

(Signed) Ben T. Williams, District Judge.
[File endorsement omitted.]

[fol. 55] In the D istbict Court of Cleveland County, 
S tate of Oklahoma

No. 14,807

A da L ois Sipuel, Plaintiff, 
vs.

B oard of R egents of the U niversity of Oklahoma, et al.,
Defendants

J ournal E ntry— August 6, 1946

This cause coming on to be heard on this the 9th day of 
July, 1946, pursuant to regular assignment for trial, the 
said plaintiff being present by her attorney, Amos T. Hall, 
and the said defendants by their attorneys, Fred Hansen, 
First Assistant Attorney General, and Maurice H. Merrill; 
and both parties announcing ready for trial and a jury 
being waived in open court, the court proceeded to hear the 
evidence in said case and the argument of counsel, said 
evidence being presented in the form of a signed “ Agreed 
Statement of Facts”  and a supplemental agreed statement 
of facts.

And the court, being fully advised, on consideration finds 
that the allegations of plaintiff’s petition are not supported 
by the evidence and the law, and the judgment is, therefore, 
rendered for the defendants, and it is adjudged that the de­
fendants go hence without day and that they recover their 
[fols. 56-57] costs from the plaintiff; to which findings and 
judgment plaintiff then and there excepted, and thereupon 
gave notice in open court of her intention to appeal to the 
Supreme Court of the State of Oklahoma, and asked that 
such intentions be noted upon the minutes, dockets and



29

journals of the Court and it is so ordered and done, and 
plaintiff praying an appeal is granted an extension of 15 
days in addition to the time allowed by Statute to make and 
serve case-made, defendants to have 3 days thereafter to 
suggest amendments thereto, same to be settled and signed 
upon 3 days notice in writing by either party.

(Signed) Ben T. Williams, District Judge.

O.K. (Signed) Fred Hansen, First Assistant Attorney 
General; Amos T. Hall, by F. H.

[File endorsement omitted.]

[fols. 58-61] Reporter’s Certificate to foregoing transcript 
omitted in printing.

[fol. 62] Clerk’s Certificate to foregoing transcript omit­
ted in printing.

[fol. 63] I n the D istrict Court of Cleveland County, 
State of Oklahoma

[Title omitted]

S ervice of Case-M ade

To the Above Named Defendants and Their Attorneys of 
Record:

The above and foregoing case-made is hereby tendered 
to and served upon you and each of you, as a true and 
correct case-made in the above entitled cause, and as a 
true and correct statement and complete transcript of all 
the pleadings, motions, orders, evidence, findings, judg­
ment and proceedings in the above entitled cause.

Dated this the 7th day of August, 1946.

Amos T. Hall, Attorneys for Plaintiff,



30

Acknowledgment of Service
I do hereby accept and acknowledge service of the above 

and foregoing case-made, this the 7th day of August, 1946. 
Mac Q. Williamson, A tty. Gen. of Okla; Fred Hansen, 

1st Asst. Atty. Gen. of Okla.; Maurice H. Merrill, 
Attorneys for Defendants.

[fol. 64] In the D istrict Court of Cleveland County,
State of Oklahoma

[Title omitted]

Certificate of A ttorneys to Case-M ade

We hereby certify that the foregoing case-made contains 
a full, true, correct and complete copy and transcript of all 
the proceedings in said cause, including all pleadings filed 
and proceedings had, all the evidence offered or introduced 
by both parties, all orders and rulings made and exceptions 
allowed, and all of the record upon which the judgment in 
said cause were made and entered, and that the same is a 
full, true, correct and complete case-made.

Witness our hands this 10th day of Aug., 1946. Amos
T. Hall, Attorneys for Plaintiff.

[fol. 65] In the D istrict Court of Cleveland County, 
State of Oklahoma

[Title omitted]

Stipulation of A ttorneys to Case-M ade

It is hereby stipulated and agreed by and between the 
parties hereto that the foregoing case-made contains a 
full, true, correct and complete copy and transcript of all 
the proceedings in said cause, all pleadings filed and pro­
ceedings had, all the evidence offered and introduced, all 
objections of counsel, all the orders and rulings made and 
exceptions allowed and all of the record upon which the 
judgment in said cause were made; and the same is a full, 
true, correct and complete case-made; and the defendants



31

waive the right to suggest amendments to said case-made 
and hereby consent that the same may be settled immedi­
ately and without notice, and hereby join in the request of 
the plaintiff that the Judge of said Court settle the same 
and order the same certified by the Court Clerk and filed 
according to law.

Dated this 7tli day of August, 1945.
Amos T. Hill, Attorneys for Plaintiff; Mac Q. Wil­

liamson, Attv. Gen. of Okla.; Fred Hansen, 1st 
Asst. Atty Gen. of Okla., Maurice H. Merrill, 
Attorneys for DefendantSi

[fol. 66] I n the D istrict Court of Cleveland County, 
State of Oklahoma

[Title omitted]

Certificate of T rial Judge to Case-M ade

Be It Remembered, that on this the 13th day of August, 
1946, in the city of Norman, Cleveland County, Oklahoma, 
the above and foregoing, case-made was presented to me, 
Ben T. Williams, regular Judge of the District Court of 
Cleveland County, State of Oklahoma, and before whom 
said cause was tried, to be settled and signed as the original 
case-made herein, as required by law, by the parties to said 
cause, and it appearing to me that said case-made has been 
duly made and served upon the defendants within the time 
fixed by the orders of this Court, and in the time and form 
provided by law; that the said defendants have waived 
notice of the time and place of presentation hereof, and the 
suggestion of amendments hereto, and said plaintiff is 
present by his Attorney of Record, Amos T. Hall, and the 
said case-made having been examined by me is true and 
correct and contains a true and correct statement and com­
plete transcript of all the pleadings, motions, orders, evi­
dence, findings, judgment and proceedings had in said cause.

I now therefore hereby allow, certify and sign the same 
as a true and correct case-made in said cause and hereby 
[fol. 67] direct that the Clerk of said Court shall attest the 
same with her name and the seal of said Court and file the



32

same of record as provided by law, to be thereafter with­
drawn and delivered to the plaintiff herein for filing in the 
Supreme Court of the State of Oklahoma.

Witness my hand at Norman, Cleveland County, State of 
Oklahoma, on the day and year above mentioned and set out.

Ben T. Williams, District Judge.

Attest: Dess Burke, Court Clerk, Cleveland County, Okla­
homa. (Seal.)

[fol. 68] [File endorsement omitted]

I n the Supreme Court of the S tate of Oklahoma
No. 32756

A da L ois Sipuei., Plaintiff in Error,

vs.

B oard of R egents of the U niversity of Oklahoma, George 
L. Cross, Maurice H. Merrill, George Wadsack, and Roy 
Gittinger, Defendants in Error

Stipulation E xtending T ime to F ile B rief— Filed October
18, 1946

It is hereby stipulated and agreed, by and between 
counsel for the plaintiff in error and the defendants in 
error, that the plaintiff in error may have 30 days from 
date hereof in which to file a brief in the above entitled 
appeal.

Amos T. Hall, Attorney for Plaintiff in Error; Fred 
Hansen, 1st Asst. Atty. Gen., Attorney for Defend­
ants in Error.

[fol. 69]—No. 32756—Ada Lois Sipuei v. Board of Regents 
of University of Oklahoma, et al., Plaintiff in error granted 
until November 22, 1946, in which to file brief, as per stipu­
lation.

T. L. Gibson, Chief Justice.



33

[fol. 70] [File endorsement omitted]
I n the Supreme Court of the State of Oklahoma

[Title omitted]

Stipulation E xtending T ime to F ile B rief— Filed Novem­
ber 22, 1946

It is hereby stipulated and agreed, by and between counsel 
for the plaintiff in error and the defendants in error, that 
the plaintiff in error may have 15 days from date hereof 
in which to file a brief in the above entitled appeal.

Amos T. Hall, Attorney for Plaintiff in Error. 
Mac Q. Williamson, Atty. Gen.; Fred Hansen, 1st 
Asst. Atty. Gen., Attorney for Defendants in 
Error.

[fol. 71] The Clerk is hereby directed to enter the follow­
ing orders:

32756—Ada Lois Sipuel v. Board of Regents of the Uni­
versity of Oklahoma, et al. Plaintiff in error granted until 
December 7,1946 to file brief, per stipulation.

T. L. Gibson, Chief Justice.

[fol. 72] [File endorsement omitted]

I n the Supreme Court of the State of Oklahoma 

[Title omitted]

Motion for Oral A rgument— Filed January 24, 1947

Comes now the plaintiff in error and respectfully moves 
the court to grant leave to submit oral argument in this 
cause, and in support thereof represents and shows to the 
court as follows:

1. This appeal presents questions of general and state­
wide interest and importance involving the constitution­
ality of the separate school laws of the State of Oklahoma.

2. The apeal in this case involves a novel question of 
general interest and importance which has not heretofore 
been decided by this court, to-wit:



34

The refusal of the Board of Regents and the adminis­
trative officers of the University of Oklahoma to admit 
[fol. 73] plaintiff in error to the School of Law consti­
tutes a denial of rights secured under the Fourteenth 
Amendment of the constitution of the United States.

3. The nature and affect of this appeal is such that a 
proper presentation of the questions involved warrants 
submission of oral argument.

Respectfully submitted, Amos T. Hall, Thurgood 
Marshall, Robert L. Carter, Attorneys for Plain­
tiff in error.

[fol. 74] [File endorsement omitted]

I n the S upreme Court of the State of Oklahoma 

[Title omitted]

M otion to A dvance Cause—Filed January 24, 1947
Comes now said plaintiff in error and respectfully moves 

this Honorable Court to advance the above-entitled cause 
for early hearing, and in support thereof represents and 
shows as follows:

1. This is an action in mandamus wherein the plaintiff in 
error seeks to compel the Board of Regents of the Uni­
versity of Oklahoma to admit her into the Law School of 
said university, and the cause involves the refusal to 
[fol. 75] admit plaintiff in error to the said School of Law 
and as alleged by the plaintiff in error constitutes a denial 
of her constitutional rights.

2. The appeal herein has been pending in this court since 
August 17, 1946; that the legislature of the State of Okla­
homa is now in session and because of the nature of the 
action should be decided by this court while the legislature 
is still in session.

Amos T. Hall, Thurgood Marshall, Robert L. Carter, 
Attorneys for Plaintiff in Error.



35

[fol. 76] [File endorsement omitted]

I n the S upreme Court of the State of Oklahoma 

[Title omitted]

Order A ssigning Case— February 6, 1947

For good cause shown, it is hereby ordered that the above 
stvled and numbered cause be assigned for oral argument 
on the docket for Tuesday, March 4, 1947, at 9 :30 A.M. or 
as soon thereafter as same may be heard in regular order, 
and the Clerk is directed to notify the parties of such
setting. .

Thurman S. Hurst, Chief Justice.

[fol. 77] I n the S upreme Court for the State of
Oklahoma

[Title omitted]

A rgument and S ubmission

March 4, 1947. J. E. Orally Argued and Submitted upon 
the Records and Briefs.

[fol. 78] [File endorsement omitted]

I n the S upreme Court of the State of O klahoma 

No. 32756

A da L ois S ipuel, Plaintiff in Error,
vs.

Board of R egents of the U niversity of O klahoma, G eorge 
L. Cross, Maurice H. M errill, George W adsack and R oy 
Gittinger, Defendants in Error

Opinion— Filed April 29,1947

S y l l a b u s

1. It is the state’s policy, established by constitution and 
statutes, to segregate white and negro races for purpose



36

of education in common and high schools and also institu­
tions of higher education. (State ex rel. Bluford v. Can­
ada, 153 S. W. 2d 12.)

2. It is the State Supreme Court’s duty to maintain 
state’s policy of segregating white and negro races for 
purpose of education so long as it does not come in conflict 
with Federal Constitution. (State ex rel Bluford v. Canada, 
153 S. W. 2d 12.)

3. It is the State Supreme Court’s duty to follow United 
States Supreme Court’s interpretation of Federal Constitu­
tion. (State ex rel. Bluford v. Canada, 153 S. W. 2d 12.)

4. Upon demand or substantial notice it is the duty of the 
Board of Regents of Higher Education and the board of 
control for Langston University to provide negroes with 
equal facilities of instruction as those enjoyed by students 
of the University of Oklahoma, under statute, but the 
proper hoard is entitled to reasonable advance notice of the 
intention of negro students to require such facilities. (State 
v. Witham, 165 S. W. 2d 378.)

[fol. 79] 5. A negro student, citizen and resident of Okla­
homa, has the same right as a white student to be educated 
in Oklahoma in preference to education in out of state 
schools with tuition aid from Oklahoma, if desired, but when 
the latter plan has been in operation for a number of years 
a negro student preferring such education in the state 
should be required to make such preference definitely known 
to the proper authorities before such student may success­
fully claim adverse and unlawful discrimination in the lack 
of furnishing such educational facilities in Oklahoma.

6. The practice in Oklahoma of furnishing tuition aid to 
negro students for higher education in schools out side of 
Oklahoma does not amount to a full discharge of the state’s 
duty to its negro students, but when such practice is fol­
lowed for a long number of years and applied to many 
negro students, with apparent satisfaction to taxpayers and 
students of botli races, it may demonstrate lack of intention 
to discriminate against negro students and may be accepted 
as the satisfactory policy of the state and as being free 
from discrimination until demand for such education within 
the state is made.



37

Appeal from the District Court of Cleveland County. Hon.
Ben T. Williams, Judge.
Action in mandamus by Ada Lois Sipuel against Board 

of Regents of University of Oklahoma, and president, reg­
istrar and two named deans of the University, to compel 
Negro petitioner’s admittance and enrollment in law school 
of the University of Oklahoma. From a judgment for de­
fendants, the petitioner appeals.

Affirmed.

[fol. 80] Amos T. Hall, Tulsa, Okla, Thurgood Mar­
shall and Robert L. Carter of New York, N. Y., for 
Plaintiff in Error.

Franklin H. Williams, of New York, N. Y., of Coun­
sel; Mac Q. Williamson, Attorney General, Fred 
Hansen, First Assistant Attorney General; Mau­
rice H. Merrill and John B. Clieadle, both of Nor­
man, Oklahoma, for Defendants in Error.

Welch, J .:
Petitioner Ada Lois Sipuel, a negro, sought admission 

to the law school of the State University at Norman. 
Though she presented sufficient scholastic attainment and 
was of good character, the authorities of the University 
denied her enrollment. They could not have done other­
wise 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 numherous statutory provisions as to 
schools.

Since statehood, and for that matter in the two Territories 
prior to statehood, separate schools have been systemati­
cally maintained and regularly attended by and for the 
races respectively. This policy has been established and 
perpetuated, and these schools have been so instituted and 
maintained by voters and taxpayers and educators and pat­
rons of both races, as if for the greater good of both races 
[fol. 81] in Oklahoma. So that, without regard to distances, 
conveniences or desires, or any other consideration, a negro 
child or pupil may not enter a white school nor a white 
child or pupil enter a negro school.

It is a crime for the authorities of any white school to 
admit a negro pupil, likewise a crime for the authorities



38

of any negro school to admit a white pupil. 70 O.S. 1941, 
Sec. 455. And it is a crime for any teacher in either such 
school to give instruction therein to pupils of the other race. 
70 O.S. 1941, Sec. 456. The law school of the University 
is maintained for white students and therefore the author­
ities and instructors thereof could not have enrolled and 
taught petitioner therein lest they suffer the criminal 
penalty therefor.

Petitioner’s failure to obtain this enrollment was fol­
lowed by this action in mandamus, seeking to compel the 
school authorities to admit and instruct petitioner, notwith­
standing the force of the above laws. Serious questions 
arise as to the propriety of the remedy sought, but we 
prefer to discuss the merits of the rights claimed by 
petitioner.

There is no controversy as to the facts presented. Trial 
was had upon stipulation, not necessary to be copied herein 
at length, as parts relied upon will be discussed in order.

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 
[fol. 82] to the United States Constitution. This is specious 
reasoning, for of course if any person, white or negro, is 
unlawfully discriminated against on account of race, the 
Federal Constitution is thereby violated. But in this claim 
for University admission petitioner takes no account, or 
does not take fair account, of the separate school policy of 
the State as above set out.

That it is the state’s duty to furnish equal facilities to 
the races goes without saying. The record would indicate 
the state has fully done so as to the lower grades, the high 
school, and as to general university training. It is a 
matter of common knowledge that for the past fifty years, 
ten years in the Territory and forty years since statehood, 
Langston University, (as it is now named), hereafter re­
ferred to as “ Langston’ ’ has been and is now7 maintained for 
separate higher education of negroes, with large sums 
appropriated therefor and thereto by the State Legislature 
at each session and large sums allocated thereto by the 
State Regents for Higher Education. Oklahoma Constitu­
tion, Art. XIII. A.

It is demonstrated by allegations of petitioner, and ad­
mission of answer and stipulation, that petitioner has in no



39

manner been discriminated against as to lower grades, high 
school and pre-law college instruction, for petitioner spe­
cifically claims that she has fully completed all scholastic 
work required for pre law and is therein as well qualified 
as any white student to study law. That is not controverted, 
hut is admitted and it is clear that petitioner attained such 
[fol. 83] status in the separate schools of Oklahoma in­
cluding Langston.

Here we must notice the important point that it is not 
wholly clear whether petitioner seeks to overturn the com­
plete separate school policy of the state, or seeks to com­
pel equal facilities for the races by obtaining an extension 
of such facilities to include a separate law school for 
negroes. That point is made uncertain by the pleadings 
and brief of petitioner and by the stipulation. There is 
much to indicate petitioner does not assail and seek to 
destroy the entire separate school policy, and there is some 
statement to that effect by her or for her in the oral argu­
ment. But there is contradiction thereof in petitioner’s 
brief.

There is an assumption or a charge in respondent’s brief 
that petitioner does not desire the institution of a separate 
law school, does not desire to attend such a school, and 
would not attend same if it should be duly and adequately 
instituted. That assertion is not effectively or satisfac­
torily denied by petitioner since no reply brief was filed, 
the usual time for reply brief was allowed, and her position 
on the point is not made wholly clear in oral argument.

The authority of a state to maintain separate schools 
seems to be universally recognized by legal authorities. 
Missouri ex rel. Gaines v. Canada, 305 U. S. 337, 344, 83 
L. Ed. 208, — S. Ct. — ; Plessy v. Ferguson, 163 U. S. 537, 
544, 41 L. Ed. 256, 258, 16 S. Ct. 1138; McCabe v. Atchison 
T. & S. F. Ry. Co. 235, U. S. 151, 160, 59 L. Ed. 169, 173, 
35 S. Ct. 69; Gong Lum v. Rice, 275 U. S. 78, 85, 86, 72 
L. Ed. 172, 176, 177, 48 S. Ct. 91.
[fol. 84] In Bluford v. Canada, D. C. 32 F. Supp. 707, 710- 
711 (appeal dismissed 8 Cir. 119 F. 2nd 779) it was said:

“ The State has the constitutional right to furnish 
equal facilities in separate schools if it so desire. 
Plessy v. Ferguson, 163 U. S. 537, 16 S. Ct. 1138, 41 
L. Ed. 256; McCabe v. Atchison, T. & S. F. Ry. Co., 235
U. S. 151, 35 S. Ct. 69, 59 L. Ed. 169. Absent notice and



40

a reasonable opportunity to furnish facilities not there­
tofore requested, the state’s right to follow its estab­
lished policy is destroyed for reasons noted. Such a 
result should not he brought about absent an impelling 
necessity to secure to the citizen his or her constitu­
tional rights.

“ We may add that while all admit that the benefits 
and burdens of public taxation must be shared by citi­
zens without discrimination against any class on 
account of their race, the education of the people in 
schools maintained by state taxation is a matter belong­
ing to the respective states, and any interference on the 
part of Federal authority with the management of such 
schools cannot be justified except in the case of a clear 
and unmistakable disregard of rights secured by the 
supreme law of the land.”  Cummings v. Board of 
Education, 175 U. S. 528, loc. cit. 554, 20 S. Ct. 197, loc. 
cit. 201, 44 L. Ed. 262.
[fol. 85] “ Furthermore, if plaintiff may maintain this 
action without alleging previous notice of her desire 
and opportunity for compliance, will on tomorrow the 
individual members of the Board of Curators of Lin­
coln University or the University of Missouri be liable 
in damages to another negro, if, perchance, late today 
he or she demands instruction at Lincoln University, 
for which facilities are lacking, and then in the morn­
ing demands admittance to the University of Missouri! 
Yet such would seem to be the result contended for hv 
plaintiff unless the curators should maintain at Lincoln 
University at all times all departments of instruction, 
whether used or not, which are available at the Uni­
versity of Missouri. It does not appear that ‘ a clear 
and unmistakable disregard of rights secured by the 
supreme law of the land’ would result from a failure 
on the part of those curators to keep and maintain in 
idleness and non-use facilities at Lincoln University 
which no one had requested or indicated a desire to use.

“ Since the State has made provision for equal edu­
cational facilities for negroes and has placed the man­
datory duty upon designated authorities to provide 
those facilities, plaintiff may not complain that defend­
ant has deprived her of her constitutional rights until 
she has applied to the proper authorities for those



41

rights and has been unlawfully refused. She may not 
[fol. 86] anticipate such refusal. Highland Farms 
Dairy v. Agnes, 300 U. S. 608, loc. cit. 616, 617, 57 S. Ct. 
549, 81 L. Ed. 835. # * *”

We conclude from the over-all presentation that peti­
tioner does not attack the separate school policy of Okla­
homa, or if she does the attack by this method is wholly 
without merit.

It would seem that petitioner’s grievance is founded on 
the fact that the state has not established a law school for 
Negroes at Langston or elsewhere in the state, assuming a 
desire on her part to attend such separate law school if it 
existed.

In response to such a claim or asserted grievance the 
respondents assert petitioner has never made a demand for 
the establishment of a law school for negroes, and it is stipu­
lated no such demand has ever been made.

As we view the matter the state itself could place complete 
reliance upon the lack of a formal demand by petitioner. 
We do not doubt it would be the duty of the state, without 
any formal demand, to provide 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
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 
[fol. 87] 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 considered 
in deciding whether there is any actual or intentional dis­
crimination against petitioner or her race.

If some specific course is now or should hereafter be 
offered to negroes in their University at Langston, but not 
at the same time made available in college courses for white



42

pupils, would the state be guilty of discrimination for not 
offering such a course to white pupils before it knew of any 
white pupils desiring such particular instruction! And in 
such a case would the remedy of a white pupil be to demand 
and seek to force entry into Langston to get such instruction, 
or to let be known his desire to have instruction in such 
course in the school maintained for his race!

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 mem­
ber of that race was available for such instruction and de­
sired the same. The fact that petitioner has made no 
[fol. 88] demand or complaint to that hoard, 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.

If the state in fairness to all taxpayers, and in good faith, 
deferred the installation of a law school for negroes, with 
its attendant expense, till at least some need therefor oc­
curred, or was made manifest, it would hardly be fair for 
one of that race, refraining from demand or notice or in­
formation to that board, to take advantage of the situation 
then to choose a character of relief contrary to the lawful 
separate education policy of the state heretofore noticed.

Attention is called in the briefs to the fact that for a num­
ber of years the state, in lieu of a law school for negroes, 
has provided a fund whereby members of that race could 
attend law school outside the state, in law schools open to 
negroes, at expense of this state. Various members of that 
race have taken advantage of such opportunity, and several 
are now doing so. That plan does not necessarily discharge 
the state’s duty to its negro citizen. See Gaines v. Missouri, 
above cited. Negro citizens have an equal right to receive 
their law school training within the state if they prefer it. 
However, the above plan does not necessarily demonstrate 
a discrimination against negroes. Financial consideration, 
the saving to taxpayers, is not controlling, but is important 
to both races.

With both races believing in and practicing the policy of 
separate schools, it is possible that both races, including 
taxpayers and pupils of both races, might prefer the plan of



43

ffol. 89] furnishing education in law to negroes in estab­
lished law schools outside the state, which are open to 
negroes, rather than the establishment of a separate law 
school in Oklahoma. It is certainly possible that negro 
pupils desiring to attend law school would prefer this pro­
vision for out of state study. If all negroes, qualified and 
desiring law school education, had such preference then 
they surely could not contend that such plan would dis­
criminate against them. That is, while the furnishing of 
such out of state education would not necessarily discharge 
the state’s obligation to negro citizens eligible to study law, 
since we have the policy of separate education which is a 
lawful policy, the furnishing of out of the state law educa­
tion to negroes would free the state from any charge of 
discrimination as long as both races preferred that plan to 
a separate law school in the state for negroes. Under these 
circumstances there is no more discrimination against 
negroes than there is in favor of negroes insofar as con­
cerns their receiving lawr education in law schools out side 
of the state.

If a white student desires education in law at an older 
law school out side the state he must fully pay his own way 
while a negro student from Oklahoma might be attending 
the same or another law school out side the state, but at the 
expense of this state.
[fol. 90] It is a matter of common knowledge that many 
white students in Oklahoma prefer to and do receive their 
law training outside the state at their own expense in pref­
erence to attending the University law school. Perhaps 
some among those now attending the University law school 
would have a like preference for an older though out of state 
school but for the extra cost to them. Upon consideration 
of all facts and circumstances it might well he, at least in 
some cases, that the negro pupil who receives education 
outside the state at state expense is favored over his neigh­
bor white pupil rather than discriminated against in that 
particular.

While there is nothing in this record to show that this 
petitioner would prefer law education outside of the state 
under this plan, the record is equally blank as to any pref­
erence on her part for law instruction in a separate school in 
the state instead of such instruction outside the state, but at 
the expense of the state.



44

It seems clear to us that since our state policy of 
separate education is lawful, the petitioner may not enter 
the University Law Schools maintained for white pupils. 
Certainly she could not do so without a destruction of this 
state policy of separate education. She does not expressly 
claim any right to destroy this separate educational policy 
and under the facts shown, no such right would exist if she 
did claim it. It is equally certain, however, that petitioner 
is entitled to pursue her law studies and that without any 
unlawful discrimination against her. That is to say, she 
may not attend the law school for white pupils for that would 
be unlawful and would involve illegal acts by herself, the 
authorities of the school, the instructors therein and the 
white pupils therein, but for emphasis we repeat that this 
[fol. 91] does not change the fact that she is entitled at the 
expense of the state to pursue her studies in law and he 
educated therein. This she may do either in a separate law 
school to be established in the state, which as we have shown, 
may well be done and for which authority already exists, or 
if petitioner acquiesces in the plan she may have her 
education in law outside the state, but at the expense of 
this state.

As we have showTn, for some years the state has followed 
the plan of financing out of state law education for negroes 
in place of a separate law school for negroes in the state. 
It is but fair to assume that such plan is both adequate and 
satisfactory if not preferable, to negroes, at least until 
some character of showing is made to the contrary.

The petitioner places reliance upon the decision of the 
Supreme Court of the United States in Missouri ex rel. 
Gaines v. Canada, 305 U. S. 337, 83, L. Ed. 208, but between 
that case and this there are various distinguishing features 
both of law and of fact.

In Missouri, Lincoln University maintained separately 
for negroes occupies a position similar to Langston Uni­
versity in Oklahoma. Gaines was a graduate of Lincoln 
University as petitioner was a graduate of Langston. When 
Gaines applied to the law school of the University of Mis­
souri maintained separately for white pupils his admission 
was denied, but he was advised to and did communicate with 
the authorities of Lincoln University. The opinion does 
not disclose the exact nature of his communication or ap­
plication to Lincoln University, but since Gaines was follow-



45

ini' through on his application for and liis efforts to obtain 
law school instruction in Missouri, we assume he applied to 
Lincoln University for instruction there in the law. The 
authorities then, instead of making provision for petitioner’s 
education in the law within the state, sought to discharge 
[fol. 92] the obligation of the state by tendering Gaines 
instruction in law out side the state. In the case at bar 
no such application or notice of any kind was given by peti­
tioner Sipuel to the authorities of Langston, or to the State 
Regents of Higher Education. Thus in Missouri there was 
application for and denial of that which could have been law­
fully furnished, 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. Had this petitioner 
made application or given notice to those in charge of 
Langston they had authority and it would have been their 
duty to provide for her an opportunity for education in law 
at Langston or elsewhere in Oklahoma.

As to distinguishing points in law we observe that in 
Oklahoma, but not in Missouri, there are specific statutes 
prohibiting education of whites and negroes together and 
that a crime would he committed in Oklahoma, but not in 
Missouri, if whites and negroes were taught together, and 
apparently in Missouri, but not in Oklahoma, the authorities 
of the University for negroes have, or at that time had, a 
discretion to either provide educational facilities for negroes 
in Missouri or require negroes ready for higher education 
to attend schools out side the state. Also that in Missouri, 
the constitution provided for separate public schools, but 
contained no express provision for race separation for the 
purpose of higher education. Furthermore, in Missouri 
the out of state education was restricted to states adjacent 
to Missouri, while, as heretofore pointed out, such out of 
state education 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 Okla- 
[fol. 93] homa negro students have attended schools in 
more than twenty states extending from New York to Cali­
fornia, and including the Nation’s Capitol.

This freedom of choice supplying in Oklahoma and this 
wider use of our out of state privilege is not to be taken 
as a complete discharge of the state’s obligation to negro



46

pupils in higher education, but it is important in considering 
whether this plan might not be more desirable to all negroes 
than the maintaining of separate schools for their respec­
tive courses in Oklahoma, and might tend to justify the 
conclusion that such plan was and is wholly satisfactory to 
all negroes affected, until and unless there should be con­
trary showing or indication by demand or request or notice 
to the authorities in charge of higher education for negroes. 
This all leads to the conclusion that petitioner here could 
and should have presented some application or notice or 
information to those authorities as did the petitioner Gaines 
in Missouri.

The decision in the Gaines case seems to have resulted 
from the failure and refusal of the proper authorities to 
make provision for the separate education of petitioner in 
law in Missouri, after specific demand or application there­
for, or at least the failure so to do after the authorities in 
charge of the school for higher education of negroes 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.

The conclusion of the court in the Gaines case is stated 
in these words near the end of the opinion:

“  * * * We are of the opinion that the ruling was
error, and that petitioner was entitled to be admitted 
to the law school of the State University in the absence 
of other and proper provision for his legal training 
within the State.”

[fol. 94] There, as here, the petitioner could have no 
personal complaint as to the failure years ago to provide 
a law school for negroes long before petitioner was ready 
for such a course. So the “ absence * * * of provision
for his legal training in the State ’ ’ noticed in the Gaines case 
must have been the failure to provide same for him, Gaines, 
when he was ready for it and made known his desire and liis 
availability. This he did when he made application to 
Lincoln University as above observed, but this the peti­
tioner Sipuel wholly failed to do.

Therefore there was not the same failure to provide as to 
petitioner Sipuel in Oklahoma as there was a failure to 
provide as to petitioner Gaines in Missouri. We are con­
sidering here not the political or economic question of the 
failure generally in years gone by to provide a law school



47

for negroes. We are considering the question of the legal 
rights of petitioner herself to have such provision made for 
her, and, certainly, as to an individual and his or her 
rights, the court should not adjudge a failure to provide 
until there is some demand or notice or knowledge of desire 
and availability on the part of that individual. Apparently 
petitioner Gaines in Missouri was seeking first that to which 
lie was entitled under the laws of Missouri, that is, education 
in law in a separate school. Here petitioner Sipuel ap­
parently made no effort to seek in law in a separate school, 
but instead sought only that to which she was not entitled 
under the law, that is, education in law in the school sepa­
rately provided for white students.

Since there was not here the same failure to provide as 
in the Gaines case, for lack of opportunity here to furnish 
provision in compliance with a request or expressed desire 
[fol. 95] therefor, as existed in the Gaines case, we do not 
believe that the rule of the Gaines case is fully applicable 
here. The reasoning and spirit of that decision of course 
is applicable here, that is, that the state must provide either 
a proper legal training for petitioner in the state, or ad­
mit petitioner to the University Law School. But the very 
existence of the option to do the one or the other imports 
the right or an opportunity to choose the one of the two 
courses which will follow the fixed policy of the state as 
to separate schools, and before the courts should foreclose 
the option the opportunity to exercise it should he ac­
corded. That opportunity which was afforded by Gaines 
by his acts, was denied by petitioner Sipuel here. The 
effect of her actions was to withhold or refrain from 
giving to the proper officials, the right or option or op­
portunity to provide separate education in law for her, 
as instead she proceeded immediately to offer herself for 
enrollment in the University Law School for white students, 
and to insist upon that as her rightful remedy.

In State v. Witham, 165 S. W. (2d) 378, the Supreme 
Court of Tennessee held:

“ Upon demand it is the duty of the board of education 
to provide negroes with equal facilities of instruction 
as those enjoyed by students of University of Tennes­
see, under statute, but the board is entitled to reason­
able advance notice of their intention to require such 
facilities. ’ ’



48

That same philosophy was applied by the Federal Court in 
Bluford v. Canada, supra, as shown in part by the previous 
quotation from that opinion. We quote further therefrom 
as follows:

“ The petition does not allege any demand by plaintiff 
or any other negro for instruction in journalism at 
Lincoln University, nor does the petition allege that 
the governing body of Lincoln University had ample 
time to furnish those facilities after plaintiff first 
sought admission to the University of Missouri. The 
omission is not inadvertent. On oral argument counsel, 
with complete frankness, stated plaintiff’s position to 
[fol. 96] he that although plaintiff should be the first 
to request the desired instruction she is entitled to it 
at the University of Missouri instanter, if it be now 
furnished there to white students and is not immedi­
ately available at Lincoln University. If her position 
is well taken to allegation of advance notice to the 
authorities of Lincoln University of her desire for 
the instruction demanded is necessary. On the other 
hand, if the State be entitled to an opportunity to fur­
nish the instruction at Lincoln University before it 
or its administrative officers (such as the defendant), 
be convicted of violation of the equal protection clause, 
then the petition should be amended or defendant’s 
motion sustained.”

Then after discussion of the matter, including the reason­
ing first copied from this opinion, the court held the dis­
missal order would be sustained unless the amendment to 
petition should be made, thus fully approving the rule that 
the state is entitled to notice and an opportunity to furnish 
proper separate schools education before one may claim 
a denial amounting to a discrimination.

In State ex rel. Bluford v. Canada, 153 S. W. (2d) 12, 
the Supreme Court of Missouri held:

“ A demand by negro on board of curators of state’s 
university for negroes to open journalism department 
and such board’s refusal to do so within reasonable 
time are prerequisites to issuance of writ of mandamus 
compelling state university registrar to admit such 
negro as student in state university school of journal­
ism.”



49

In the body of the opinion of that case it was said:
“ It is the duty of this court to maintain Missouri’s 
policy of segregation so long as it does not come in con­
flict with the Federal constitution. It is also our duty 
to follow the interpretation placed on the Federal Con­
stitution by the Supreme Court of the United States. 
The Supreme Court has many times approved the policy 
of segregation. Mr. Chief Justice Hughes, citing au­
thorities, again approved the policy in the Gaines case, 
provided substantially equal facilities for colored per­
sons be furnished within the State. Since that opinion, 
Missouri, by legislative enactment, has ordered that 
equal facilities be provided within her borders and 
has designated the Board of Lincoln University as the 
proper authority to furnish such facilities. The duty 
of the Lincoln Board to open new departments on 
proper demands is not mandatory. True, the Board 
cannot operate without funds. If its funds are insuf­
ficient to provide all courses taught at Missouri Uni­
versity, the Board shall allocate its funds to the courses 
most needed. But that very fact entitled the Board 
to have a demand made upon it before being required 
to open a new department, for surely the Board is 
[fol. 97] not required to maintain departments for 
which there are no students. We think also that the 
Board is entitled to a reasonable time in which to open 
a new department after demand is made. If, upon 
proper demand, the Lincoln Board had refused to es­
tablish a course in journalism within a reasonable time, 
or had informed appellant that it was unable to do so, 
appellant would have been entitled to admission to that 
course in the Missouri University.”

And further in the opinion it was said:
“  * * * Here, because of the lack of a previous
demand on Lincoln University, appellant was not en­
titled to admission to Missouri University at the time 
of her application. * * * ”

In petitioner’s brief it is said:
“ 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



50

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. It was not 
necessary, therefore, that the plaintiff-in-error make 
a prior demand upon this Board to perform its lawful 
duty before she may request mandamus to obtain her 
lawful right to a legal education.
“ It is axiomatic that the law will not require an indi­
vidual to do a vain and fruitless act before relief from 
a wrong will be granted. * * * ”

It is then said by way of argument that any demand by 
petitioner would have been fi-uitless and vain. It is pointed 
out that the Regents of Higher Education had knowledge 
of this civil action after it was tiled and that they met and 
considered “ the questions involved”  in the court action, 
hut took no steps toward the setting up or operation of a law 
school for negroes in Oklahoma. There is a three-fold 
answer to this argument. First, the petitioner had no 
right at all to anticipate refusal or denial of her demand, 
and, two, the petitioner has not as yet indicated her desire 
or willingness to attend a separate law school for negroes 
in Oklahoma, and third, “ the questions involved”  in this 
court action embraced only the claimed right of petitioner 
to enter Oklahoma University.

The above quoted statement from petitioner’s brief, liow- 
[fol. 98] ever, does demonstrate acquiesence in the theory 
that in Oklahoma it is the fixed duty of the Board to make 
provisions for higher education of negroes, different from 
the mere discretion to do so as was noticed in the Gaines 
case and relied upon to support the conclusion there reached.

The Constitution of the United States is the Supreme 
Law of the land. It effectively prohibits discrimination 
against any race and all state officials are sworn to sup­
port, obey and defend it. When we realize that and con­
sider the provisions of our State Constitution 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 facilities for the races to the full extent 
that the same is necessary for the patronage thereof. That 
hoard has full power, and as we construe the law, the man­
datory duty to provide a separate law school for negroes 
upon demand or substantial notice as to patronage there­
for.



51

We conclude that petitioner Is fully entitled to education 
in law with facilities equal to those for white students, but 
that the separate education policy of Oklahoma is lawful 
and is not intended to be discriminatory in fact, and is not 
discriminatory against plaintiff in law for the reasons above 
shown. We conclude further that as the laws in Oklahoma 
now stand this petitioner had rights in addition to those 
available to white students in that she had the right to go 
out of the state to the school of her choice with tuition aid 
from the state, or if she preferred she might attend a 
separate law school for negroes in Oklahoma. We con­
clude further that while petitioner may exercise here 
preference between those two educational plans, she must 
indicate that preference by demand or in some manner 
[fol. 99] that may be depended upon, and we conclude that 
such requirement for notice or demand on her part is no 
undue burden upon her. We conclude that up to this time 
petitioner has shown no right whatever to enter the Okla­
homa University Law School, and that such right does 
not exist for the reasons heretofore stated. We hold that 
this conclusion works not unlawful discrimination against 
petitioner, that she has not brought herself within the rule 
of the Gaines case, and has wholly failed to establish any 
violation of the Fourteenth Amendment of the Federal Con­
stitution.

The judgment of the trial court denying mandamus is 
affirmed.

[fol. 100] [File endorsement omitted]

lx  the Supreme Court of the State of Oklahoma 

[Title omitted]

Order Correcting Opinion— June 5, 1947

Now on this 5 day of June, 1947, it is ordered that the 
opinion filed herein on April 29th, 1947, be and the same is 
hereby corrected in the following particulars to-wit:

On page 4 or sheet 4 in the first line of the last paragraph 
after the word “ could”  and before the word “ place”  
there is inserted the word “ not”  so that the sentence affected 
will read as follows to-wit: “  As we view7 the matter the state



52

itself could not place complete reliance upon the lack of a 
formal demand by petitioner.”

Done by order of the court in conference this 5 day of 
June, 1947.

Thurman S. Hurst, Chief Justice.

[fol. 101] I n  the Supreme Court of the State op
Oklahoma

[Title omitted]

Note re M andate

May 15, 1947 Mandate Issued 
May 17, 1947 Receipt for Mandate

[fol. 102] [File endorsement omitted]

I n the S upreme Court of the State of Oklahoma 

[Title omitted]

A pplication for L eave to F ile Petition for R ehearing

Leave is hereby granted to file this 2nd day of June, 1947, 
Thurman S. Hurst, Chief Justice.

Comes now the plaintiff-in-error, and respectfully shows 
the court that heretofore, to-wit: on the 29th day of April, 
1947, a judgment and decision of this court was rendered 
affirming the judgment of the District Court of Cleveland 
County in favor of defendants in error and against plaintiff- 
in-error; that the chief counsel for the plaintiff-in-error re­
side in New York City and was not sent a copy of the 
[fol. 103] opinion in the case; that only a copy to the under­
signed was sent, and the chief counsel of the plaintiff-in-er­
ror were out of their New York office and did not receive a 
copy of the opinion within the time prescribed by the rules of 
this court, in which a petition-in-error might be filed, and 
therefore no petition-in-error was filed within the fifteen day 
period as provided by rule 28 of this court.



53

That the plaintiff-in-error desires and requests leave of 
the court to file a petition-in-error which is in the course 
of preparation, and seriously desires to urge the same.

Wherefore, plaintiff-in-error prays the court for leave to 
file a petition-in-error within fifteen day- from date hereof. 

Respectfully submitted, Amos T. Hall, Thurgood 
Marshall, Robert L. Carter, Attorneys for Plaintiff- 
in-error.

State of Oklahoma,
County of Tulsa, ss:

Amos T. Hall, of lawful age, being first duly sworn on 
oath, states:
[fol. 104] That he mailed a copy of the foregoing applica­
tion to Mr. Fred Hansen, First Assistant Attorney General, 
State Capitol, Oklahoma City, on the 26th day of May, 1947, 
in an envelope properly addressed and with the postage 
thereon fully paid.

Amos T. Hall.

Subscribed and sworn to before me this 26th day of 
May, 1947. Henry Mae Lovejoy, Notary Public. 
My Commission expires October 30, 1950. (Seal.)

[fol. 105] [File endorsement omitted]

In the Supreme Court of the State of Oklahoma 

[Title omitted]

Order

Order Recalling M andate and E xtending T ime to F ile 
Petition for R ehearing—June 3, 1947

For good cause shown, it is hereby ordered that the 
mandate issued in the above styled and numbered cause be, 
and the same is hereby recalled, and the plaintiff in error 
granted until June 12, 1947 to file petition for rehearing 
herein.

Done by order of the Court in Conference this 3rd day 
of June, 1947.

Thurman S. Hurst, Chief Justice.



54

[fol. 106] [File endorsement omitted]

I n  the S upreme Court of the State of Oklahoma 

[Title omitted]

P etition for R ehearing—Filed June 12, 1947

To the Honorable the Presiding Judge and Associate 
Judges of the Supreme Court of the State of Oklahoma:
Now comes plaintiff-in-error, Ada Lois Sipuel, in due 

time after filing of the opinion in the above-entitled case, 
and petitions the Court to grant plaintiff-in-error a rehear­
ing on the grounds that questions decisive in the case and 
fully submitted by counsel in brief and arguments have 
been overlooked by the Court; that the opinion of the Court 
is unclear and apparently contradictory; and, that the 
decision violates the U. S. Constitution, the Fourteenth 
Amendment thereto and laws of the United States, and that 
it is in conflict with the controlling decisions of the United 
States Supreme Court.

[fol. 107] I

T he Opinion of the Court is U nclear and A pparently 
Contradictory and in Conflict W ith Controlling 
Decisions of the U nited S tates S upreme Court

A. Court Failed To Decide Questions Raised by Plaintiff- 
in-Error.

This Court, speaking through Welch, J., in its opinion 
stated in part:

“  . . . It is not wholly clear whether petitioner
seeks to overturn the complete separate school policy 
of the State, or seeks to compel equal facilities for the 
races by obtaining an extension of such facilities to 
include a separate law school for Negroes. . . There
is much to indicate petitioner does not assail and seek 
to destroy the entire separate school policy . . .”

Plaintiff-in-error has consistently contended that since 
the State of Oklahoma has made provision for the legal 
education of its white citizens within the State, its failure 
to provide equal opportunity7 for Negro citizens violates



55

the Fourteenth Amendment to the United States Constitu­
tion. The United States Supreme Court in discussing a 
similar situation said in Missouri Ex rel. Gaines v. Canada, 
305 U. S. 337, at 349:

‘ ‘ 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. That is a denial of the equality of 
[fol. 108] legal right to enjoyment of the privilege which 
the State has set up, and the provision for the payment 
of tuition fees in another State does not remove the 
discrimination. ’ ’

Her contention is clear (see: brief for plaintiff-in-error, 
Argument I, A. B. C. (1), (2) and D). Oklahoma having 
made no provision for her legal education as required by 
the Fourteenth Amendment and the interpretation placed 
thereon by the U. S. Supreme Court (Gaines v. Canada, 
(supra)), she must of necessity be admitted into the 
only law school provided by the State.

In her brief submitted to this Court, plaintiff-in-error 
stated in part:

“ Despite the line of cases in support of the ‘ separate 
but equal’ theory, this Court is under an obligation to 
reexamine the rule and the reasons on which it is 
based in the light of present day circumstances and to 
adopt and apply a rule which conforms with the require­
ments of our fundamental law.”

This the Court has not done, and its failure to do so, it is 
felt, justifies a rehearing so that the issues can be squarely 
presented and clearly decided.

B. T he Court A pparently B ased I ts D ecision U pon an 
Incorrect A nalysis of the F acts and H olding in the Case 
of Gaines v. Canada.

[fol. 109] Plaintiff-in-error contended in her brief sub­
mitted to this Court and in oral argument that the case of 
Gaines v. Canada, (supra), and the principles established 
therein were controlling. This Court erred in attempting to 
distinguish the two cases. The opinion herein stated in 
part:

“ . . . We assume he (Gaines) applied to Lincoln
University for instruction in the law . . . Thus in



56

Missouri there was application for and denial of that 
which could have been lawfully furnished, that is, law 
education in a separate school . .

The assumption made by the Court was incorrect for the 
only demand or request made by the plaintiff in the Gaines 
case was for admission into the law school of the Uni­
versity of Missouri—the same demand as made herein- 
placing the facts of the two cases squarely on all fours with 
one another. (See: Transcript of Record, Gaines v. Canada, 
Supreme Court of the United States, October Term, 1938, 
No. 57, Relator’s Exhibits, Pp. 61-71). Gaines at no time, as 
assumed by this Court, applied to Lincoln University for 
instruction in the law. (See: Separate Opinion, Mr. Jus­
tice McReynolds)

“ 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 . . ., either 
to receive a legal education at a school to be established 
[fol. 110] in Lincoln University or, . . . ?

“ A. No, sir.”  (Transcript, Gaines (supra) p. 85)

From the above it is obvious that the facts in this case 
and the Gaines case are exactly the same.

The attempted distinction between the laws of Missouri 
and those of Oklahoma are considered by plaintiff-in-error 
irrelevant, for if the Constitution of the United States 
requires that a state treat its citizens in a particular man­
ner, no state statute penalizing one violating such a law 
could be operative.

The Court’s opinion herein states in part:
“ The decision in the Gaines case seems to have re­

sulted from the failure and refusal of the proper 
authorities to make provision for the separate educa­
tion of petitioner in law in Missouri after specific de­
mand or application therefor, or at least the failure so 
to do after the authorities in charge of the school for 
higher education of Negroes had specific notice that 
petitioner Gaines was prepared and available and there­
fore there existed a need and at least one patron for a 
law school for Negroes.”

In view of the clarification above of the facts in the Gaines 
case, this statement is equally applicable to the instant



57

situation. The same demand or application made by Gaines 
has been made by plaintiff-in-error. The State of Oklahoma 
herein, as the State of Missouri in the Gaines case, has 
failed to provide for the legal education of plaintiff-in- 
[fol. I ll]  error at any place within the state. The holding 
of the Gaines case quoted by this opinion:

“ We are of the opinion that the ruling was error, 
and that petitioner was entitled to be admitted to the 
law school in the State University in the absence of 
other and proper provision for his legal training within 
the State” ,

should have been the holding herein.
The opinion of this Court throughout apparently hinges 

upon this misconception of the facts in the Gaines case, and 
with a knowledge that the facts therein were the same as ob­
tain herein, plaintiff believes that its decision would have 
been different, for it states in part:

“ Since there was not here the same failure to pro­
vide as in the Gaines case . . .  we do not believe that 
the rule of the Games case if fully applicable here.”

C. T he Opinion of T his Court A pparently Contains 
Patent Contradictions R equiring a R ehearing and Clari­
fication.

In the Court’s opinion at one point it is stated:
“ . . . the State itself could place complete re­

liance upon the lack of a formal demand by petitioner.”

The sentence immediately following is to the effect that:
[fol. 112] “ We do not doubt it would be the duty 
of the State, without any formal demand, to provide 
equal educational facilities for the races, to the fullest 
extent indicated by an- desired patronage, whether by 
formal demand or otherwise.”

Subsequently it is stated:
“ This might be shown by a formal demand, or by 

some character of notice, or by a condition so prev­
alent as to charge the proper officials with notice 
thereof without any demand.”



58

From this it would appear that in the one case the Court 
holds that a formal demand by plaintiff-in-error for the 
establishment of a separate law school would be requisite 
for the issuance of mandamus herein. It would also ap­
pear from these statements that a formal demand would not 
necessarily be requisite if “ knowledge or notice”  of a 
need or desire for the legal education of a Negro citizen 
were to be brought to the attention of the State in some 
manner.

Though it has been the contention of plaintiff-in-error 
throughout that the duty to provide facilities for her legal 
education rested upon the State and the officials thereof 
by virtue of their office and that no formal demand therefor 
[fol. 113] is necessary the opinion herein does not make 
clear whether formal demand is required or not. Certainly 
“ some character of notice”  that a Negro citizen desired 
a legal education within the State has been brought to the 
State by virtue of this action. Further, plaintiff’s appli­
cation for admission to the University of Oklahoma Law 
School brought to the attention of the State that some 
member of the Negro race desired ‘ ‘ such instructions. ’ ’ Ac­
cordingly, for the reason that the opinion of this Court is 
unclear appears contradictory, plaintiff-in-error respect­
fully requests a rehearing and clarification of the Court’s 
opinion.

D. T he Decision in the Gaines Case is Controlling
H erein

The facts obtaining in the case of Gaines v. Canada, 
(supra) are so similar to the facts obtaining herein as 
to defy differentiation. The public policy of the State of 
Missouri, as in Oklahoma, established by statute, that 
segregation of the races in educational institutions was 
requisite. The State of Missouri, as in Oklahoma, made 
provision for the education of Negro citizens in the law at 
out-of-state universities. The Court’s opinion herein would 
seem to indicate that it considers out-of-state scholarships 
for Negroes “ adequate and satisfactory.”  That such a 
system is a violative of the Fourteenth Amendment has been 
too clearly decided to warrant lengthy decisions.

[fol. 114] “ The basic consideration is not as to what
sort of opportunities other States provide, or whether



59

they are as good as those in Missouri, but as to what 
opportunities Missouri itself furnishes to white students 
and denies to Negroes solely upon the grounds of color 

petitioner was entitled to be admitted to the 
law school of the state university in the absence of 
other and proper provisions for his legal training 
within the State.”  (G aines v. Canada, supra)

Distinguishing between the instant case and the G aines  
case would be impossible. The rule announced by the 
Supreme Court in the said case is applicable herein. Ac­
cordingly, the decision of the lower court reversed.

I I

Decision V iolates U. S. Constitution

That distinctions by states on the basis of race and 
color are forbidden under our Constitution is too clear 
and too well-settled to warrant discussion herein. Strau der  
v. Virginia, 100 U. S. 303 (1879), Slaugh ter H o u se  C a ses, 
16 Wall. (U. S.) 36 (1873), E x p a r te  V irgin ia , 100 U. S. 339 
(1879).
[fol. 115] There is no dispute in this case that provision is 
made by the state of Oklahoma for the legal education of its 
citizens. White students desiring such apply, and if quali­
fied, are immediately admitted into the law school of the 
state university. Negro students desiring such education, 
however, must, according to the opinion herein, acquiesce 
in accepting scholarship aid to attend out-of-state universi­
ties or make some form of demand upon the “ proper of­
ficials”  for the establishment of a segregated law school 
at Langston University.

That the first alternative offered Negro students is 
unequal was clearly settled by the case of G aines v. Canada, 
(supra). That the second alternative cannot be considered 
equal is clear when it is recognized that such requires of 
Negro students an added burden not required of white 
students.

The equality of treatment required by the Constitution 
is to be measured as of the time the citizen desires such 
treatment. M itch ell v. U . S ., 313 U. S. 80 (1941), M cC a b e  v. 
Atchison, T . & S . F . R . C o ., 235 U. S., 151 (1914). No pro­
vision for a separate school had been made at the time



60

plain tiff-in-error applied to the University o f Oklahoma 
nor has any been made since that time. No funds have 
been made available for such a school, and therefore even 
had plaintiff-in-error demanded its establishment, her educa­
tion would have been necessarily interrupted and delayed 
by virtue of the non-existence of a law school at the state 
[fol. 116] university for Negroes. Demand, therefore, would 
obviously be an idle ceremony and accordingly cannot be 
required for the issuance of mandamus herein.

Even if the language of the instant opinion to the effect 
that some form of notice must be brought to the proper 
officials were to be followed, the decision of the lower court 
should be reversed. Such notice has been brought to the 
state and therefore to all of its agents. In the first in­
stance, the State received notice by virtue of plaintiff-in­
error’s application to the University of Oklahoma. Notice 
was again received by the State through the institution of 
this suit. Nothing has since been done to indicate that 
the State of Oklahoma has any intention of making provi­
sion for plaintiff-in-error’s legal education within the State 
according to the mandate of the Fourteenth Amendment and 
the interpretations placed thereon by the United States and 
amendments thereto.

All of which is respectfully submitted this 12 day of 
June, 1947.

Amos T. Hall, Tulsa, Oklahoma; Thurgood Marshall, 
Bobert L. Carter, New York, New York; Attor­
neys for Plaintiff-in-Error.

Franklin H. Williams, New York, New York, of Coun­
sel.

Eeceipt of a copy of the above instrument on this, the 12th 
day of June 1947, is hereby acknowledged.

Fred Hansen, 1st Asst. Atty. Gen.



61

[fol. 117] [File endorsement omitted]

In the Supreme Court of the State of Oklahoma

Order Denying Petition for R ehearing— June 24, 1947

The Clerk is hereby directed to enter the following orders: 
32756—Ada Lois Sipuel v. Board of Regents of the Uni­

versity of Oklahoma et al. Petition for rehearing is 
denied.

Thurman S. Hurst, Chief Justice.

[fol. 118] In the S upreme Court of the State of Oklahoma

[Title omitted]

Note re M andate

July 3,1947—Mandate Issued.
July 8,1947—Receipt for Mandate.

[fol. 119] Clerk’s Certificate to foregoing transcript 
omitted in printing.

[fol. 120] Supreme Court of the U nited States

Order A llowing Certiorari—Filed November 10, 1947
The petition herein for a writ of certiorari to the Supreme 

Court of the State of Oklahoma is granted.
And it is further ordered that the duly certified copy of 

the transcript of the proceedings below which accompanied 
the petition shall be treated as though filed in response to 
such writ.

(3437)





5





IN THE SUPREME COURT OF THE 
UNITED STATES

OCTOBER TERM, 1947

No. 369

Ada Lois Sipuel,
P etitio n er ,

VERSUS

Board of Regents of the University of Oklahoma, 
George L . Cross, M aurice H . M errill, 

George W adsack and Roy Gittinger,
R e sp o n d e n ts .

B R IE F  OF RESPONDENTS

M ac Q. W illiamson,
Attorney General o f Oklahom a,

Fred Hansen,
First Assistant Attorney General, 
State Capitol,
Oklahom a City, Oklahom a,

M aurice H. M errill,
John B. Cheadle,
N orm an, Oklahoma,
A t t o r n e y s  fo r  R e sp o n d e n ts .

October, 1947.

KING LAW BRIEF COMPANY, 418 NORTHWEST THIRD, OKLAHOMA CITY— PHONE 3 -2969





I N D E X

PAGE

Statement of the C a s e ------------------------------------------------------  1

A rgu m en t---------------------------------------------------------------------------- 3

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

107 Okla. 165, 231 Pac. 4 6 9  ____________________ 3
Stone v. Miracle, Judge, 196 Okla. 42 ,

162 Pac. (2 d )  5 3 4  ________________________________  3
12 O.S. 19 41 , Section 1 4 5 1 ________________________  3

First Proposition: T h e 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 Oklahom a has provided the institutional 
basis on which the petitioner may secure such edu­
cation.

(a) T h e decision o f the Supreme Court o f  
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 o f one o f said other races w ho in­
dicates an intention to accept such tra in in g .____  5

A uthority:—

Missouri ex rel. Gaines v. Canada,
305 U .S . 3 3 7  _____________________________________ 6, 11

(b ) T he decision o f 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 public educational institu­
tion of higher education, on a basis of equality 
with white students admitted to law courses at 
the University of O k la h o m a .--------------------------------  6

A u th ority :—
Allen-Bradley Local v. W isconsin etc. Board,

3 1 5  U .S . 740  ______________________________________  10
American Power & Light C o. v. Sec. U Exch.

C om m ., 3 2 9  U .S . 9 0 --------------------------------------------- 10
A . T .  U S. F. R y. C o. v. R . R . C om m , of Cal.,

28 3  U .S . 3 8 0  ______________________________________  10
Board o f Regents v. Childers, State Auditor,

197  Okla. 3 5 0 , 170  P a c .(2 d ) 1 0 1 8 ____________ 8
Douglas v. N .Y . ,  N .H . etc. R y. C o ., 2 7 9  U .S . 3 7 7  10
E x  parte T indall, 102  Okla. 192 , 2 2 9  Pac. 1 2 5 —  9
In re: Assessment o f K . C . S. R y. C o .,

168 Okla. 4 9 5 , 33 Pac. (2 d )  77 2  _______________  9
Overton v. State, 7 Okla. Cr. 2 0 3 , 114  Pac. 1 1 32  9
Q uong H am  W a h  C o. v. Ind. Acc. C om m .,

235  U .S . 4 4 5  _______________________________________ 11
Senn v. T ile  Layers etc., 301 U .S . 4 6 8  ____________ 10
State ex rel. Bluford v. Canada, 3 4 8  M o . 2 9 8 ,

153 S .W . (2 d )  1 2 ________________________________  9
T am p a W ater W ork s C o. v. T am pa,

199 U .S . 2 4 1 _______________________________________ 10
U . S. v. Texas, 3 1 4  U .S . 4 8 0  ______________________ 10
Article 1, Section 1, Oklahom a Constitution_____  8
Article 13, Section 3, Oklahom a Constitution____
Article 1 3 -A , Section 2, Oklahom a Constitution 8
Article 15, Section 1, Oklahom a Constitution_____  8
70 O .S . 1941 , Sections 4 5 5 , 4 5 6 , 4 5 7  ____________ 7
70 O .S . 19 41 , Section 1 4 5 1 __________________________ 7

(c) T h e Oklahom a law, thus interpreted, ac­
cords w ith the Equal Protection Clause of the 
Fourteenth Amendment, as interpreted by this 
C o u r t .________________________________________________  11

11
P A G E



Authority:—
Berea College v. Kentucky, 211 U .S . 4 5 ----------------  11
Bluford v. Canada, 32  Fed. Supp. 70 7  ------------------  15
Cumming v. County Board etc., 175 U .S . 5 2 8 ------  11
Gilchrist v. Interborough etc. C o., 2 7 9  U .S . 159 15
Long Lum  v. Rice, 27 5  U .S . 7 8 ------------------------------  11
Missouri ex rel. Gaines v. Canada,

305 U .S . 3 3 7  ________________________ 12, 13, 14, 15
Plessy v. Ferguson, 163 U .S . 5 3 7  ---------------------- -—  11
State ex rel. Bluford v. Canada, 34 8  M o . 2 9 8 ,

153 S .W .( 2 d )  1 2 ________________________________  15
State ex rel. Michael v. W itham , 179 T enn. 2 5 0 ,

165 S .W .( 2 d )  37 8  ________________________________  15

Second Proposition: T h e petitioner has failed to seek 
relief from or against the officials w ho may provide 
it under the law of O k la h o m a ._____________________  16

Authority:—
Copperweld Steel C o. v. Ind. C om m .,

324  U .S . 78 0  __________________________________  16
Lawrence v. S. L . 13 S. F. R y. C o ., 2 7 4  U .S . 5 8 8  17
Prentis v. Atlantic etc. C o ., 211  U .S . 2 1 0 -------------  17
S. L. 13 S. F. R y. C o. v. Alabam a etc. C om m .,

270  U .S . 5 6 0  ___________________________________ 17

C o n clu sio n ________________________________________________  19

I ll
PAGE





IN THE SUPREME COURT OF THE 
UNITED STATES

OCTOBER TERM, 1947

No. 369

A da Lois Sipuel,
P etitio n er ,

VERSUS

Board of Regents of the U niversity of Oklahoma, 
George L. Cross, Maurice H. M errill, 

George W adsack and Roy Gittinger,
R e sp o n d e n ts .

B R IE F  OF RESPONDENTS

STATEMENT OF THE CASE

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

petitioner’s brief, in which is incorporated by reference her 

petition for writ o f certiorari, is substantially correct with  

the exception that respondents did not, as stated in said



2 S i p u e l  v .  B o a r d  o f  R e g e n t s  e t  a l .

petition (R . 2 and 3 ) ,  refuse petitioner admission to the 

L aw  School of the University o f Oklahom a on the ground:

“  ( 2 )  T h a t scholarship aid was offered by the State 
to Negroes to study law outside the State, * *

W h ile  certain allegations o f fact set forth in said state­

ment and incorporated petition are not, in all respects, 

accurate, and certain conclusions o f law set forth therein 

not, in our opinion, sound, respondents will fully clarify 

their position in relation to said allegations and conclusions 

in our “ Argum ent” herein.

However, before concluding this “ Statement of the 

Case,” respondents desire to call attention to the “ Order 

Correcting Opinion— June 5, 1 9 4 7 ,”  which appears on 

Pages 51 and 52 o f the record, and to the fact that said 

correction was not made in the pertinent language of the 

decision of the Supreme Court of Oklahom a, 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 o f the fourth paragraph of said 

opinion, which paragraph appears on Page 41 o f the record, 

so that said line w ould read:

A s we view the matter the State itself could not 
place complete * * *

B y  an examination of said decision, as it appears in 

180 Pac. (2 d )  1 3 5 -1 3 8 , it w ill be noted that said correc­

tion was likewise not made therein.



B r i e f  o f  R e s p o n d e n t s 3

ARGUMENT

There is but one real issue involved in this case and 

that is w h eth er  or n o t  the trial co u rt, that is, the District 

Court of Cleveland County, Oklahoma, erred in declining  

to issue a w r it  o f  m a n d a m u s, as prayed for by petitioner, 

to require the resp o n d en ts , Board of Regents of the U niver­

sity of Oklahoma, George L . Cross, Maurice H . Merrill, 

George Wadsack and R oy Gittinger, to  a d m it th e p etitio n er , 

Ada Lois Sipuel, to  th e S c h o o l o f  L a w  o f  the U n iv e r s ity  

o f O k la h om a .

Before discussing the above issue respondents deem it 

advisable to call attention to  12 O .S . 19 41 , Sec. 1451 , 

relating to the right o f issuance o f a writ o f mandamus 

in Oklahoma, the material part o f which is as follow s:

“ T h e  w r it  o f  m a n d a m u s m a y  he issued b y  the  Su­
preme Court or the district co u r t, or any justice or 
judge thereof, during term, or at chambers, to any in­
ferior tribunal, corporation, board or person, to  c o m p el  
the p erform a n ce o f  a n y  act w h ic h  the la w  specially  
en join s as a d u ty , resu ltin g  fr o m  an office, tru st or  
sta tio n ; * *

The Oklahom a Supreme Court, in construing the 

above language, held in the second paragraph of the sylla­

bus of P a y n e , C o u n t y  T rea su rer et al. V. S m ith , J u d g e, 

107 Okla. 165, 231 Pac. 4 6 9 , as follow s:

“ T o  sustain a petition for mandamus p etitio n er
m u st s h o w  a legal righ t to  h a ve the act d o n e  s o u g h t  
b y  the w rit , an d also that it is plain  legal d u ty  o f  the  
defen d an t to  p e r fo r m  the act.”

In the case of S to n e  V. M ira cle, D is t . J u d g e, 196 Okla. 

42, 162 Pac. (2 d )  5 3 4 , the syllabus is as follow s:



4 S i p u e l  v . B o a r d  o f  R e g e n t s  e t  a l .

“ M andamus is a writ awarded to correct an abuse 
o f  p o w e r  or an u n la w fu l exercise th ereo f b y  an inferior 
court, officer, tribunal or b oa rd  b y  w h ic h  a litigant is 
d enied  a clear legal righ t, especially where the remedy 
by appeal is inadequate or would result in inexcusable 
delay in the enforcement of a clear legal r ig h t.”

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 

th is action  in m a n d a m u s, alleged in her petition (R . 2 to 6) 

that although she was duly qualified to attend the School 

of L aw  of the University of Oklahom a when she, on Jan­

uary 14, 1946 , “ duly applied for admission to the first 

year class’ ’ o f said school for the term beginning January 

15, 19 46 , she was by respondents:

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

<** * * arbitrarily an d illega lly  rejected” (Para. 2 
of petitioner’s p e t.) .

A n d  that said refusal or rejection was:

“ * * * arbitrary an d illegal”  (Para. 5 o f petitioner’s 
p e t.) .

Therefore, the real issue involved in this case is whether 

or not respondents, on January 14, 19 46 , arbitrarily and 

illega lly  rejected the application of petitioner for admission 

to the School o f Law  of the University of Oklahoma.

Said issue is summarized herein as follow s:

M andam us w ill not lie to require respondents to 
violate the public policy and criminal statutes o f Okla­
homa by directing respondents to admit petitioner, 
a colored person, to the School of L aw  of the Univer-



B r i e f  o f  R e s p o n d e n t s 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 o f Article 13-A o f the Constitution 
of Oklahoma, to prescribe a school o f law equal or 
“ substantially equal”  to that o f the University o f 
Oklahoma as a part o f the “ standards o f higher 
education”  and/or “ functions and courses o f study” 
of Langston University, same being a State institu­
tion o f higher education attended only by colored 
persons, or

(2 ) Indicated, directly or indirectly, to said State 
regents or to the governing board o f Langston U ni­
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 

OKLAHOMA APPEALED FROM HEREIN ACCORDS 
FULL RECOGNITION TO THE ASSERTED CONSTI­
TUTIONAL RIGHT OF THE PETITIONER TO HAVE 
PROVISION MADE FOR HER LEGAL EDUCATION  
W ITHIN THE STATE AND ESTABLISHES THAT THE 
STATE OF OKLAHOMA HAS PROVIDED THE INSTI­
TUTIONAL BASIS ON W HICH THE PETITIONER MAY 
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 Saw to white students ot 
en institution within its borders to likewise provide 
such education within the state to students belonging 
to c-ther races, and 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.

T h e decision of the Oklahom a Supreme Court, as 

above outlined, is in accord with the basis upon which the 

decision in M iss o u r i  e x  rel. G a in es  V. C an ad a, 305  U.S. 

3 3 7 , rests. T h e decision o f the Supreme Court of Okla­

homa recognizes this fully and repeatedly. “ T h a t it is the 

State’ s duty to furnish equ al facilities to the races goes 

w ithout saying”  (R . 3 8 ) .  “ Negro citizens have an equal 

right to receive their law school training within the State 

if they prefer it”  (R . 4 2 ) .  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 Oklahom a”  (R . 4 5 ) .  “ T h e  reasoning and 

spirit of that decision [the G a in es c a se ], o f 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 L aw  School (R . 4 7 ) .  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



B r i e f  o f  R e s p o n d e n t s 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, b u t on  a n y  definite in fo r m a tio n  that a member 

of that race was available for such instruction and desired 

the same” (R . 4 2 ) .  Said duty is summed up in the con­

cluding portion of the opinion in the statement ‘ ‘we are 

convinced that it is the m a n d a to r y  d u ty  o f 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. T h a t board has full power, 

and as we construe the law, the m a n d a to r y  d u ty  to provide 

a separate law school for Negroes upon demand or sub­

stantial notice as to patronage therefor” (R . 5 0 ) .

This determination rests upon a substantial basis (as 

is shown by Paragraphs 1 to 5, b e lo w ), in the constitu­

tional and statutory law of Oklahom a:

1. T h e constitution and laws o f said State pre­
scribe the policy of segregated education of the white 
and the colored races, but with equal facilities, from  
the common schools, Oklahom a Constitution, Article 
13, Section 3 (R . 16, Par. 1 4 ) ,  on through the col­
leges and other institutions, 70 O .S . 1941,  Sections 
45 5 , 4 5 6  and 4 5 7  (printed in full in the appendix 
to petitioner’s brief, P. 2 1 ) .

2. In pursuance o f 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. T h e Oklahom a State Regents for Higher E du­
cation is established as ‘ ‘a co-ordinating board o f con-



8 S i p u e l  v .  B o a r d  o f  R e g e n t s  e t  a l .

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 o f 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 1 3 - A ,  Section 2 (printed 
in full in appendix to petitioner’s brief, P. 2 0 )  . This 
last function of recommending budget allocations is 
merely for the information of the Legislature, since 
Section 3 o f said article is as follow s:

“ T h e appropriations made by the Legislature for 
all such institutions shall be made in consolidated 
form w ith o u t  reference to  a n y  particular institution  
and the Board o f Regents herein created shall allo­
cate to each institution according to  its needs and 
fu n c tio n s .”

T h e m a n d a to ry  character of this constitutional pro­
vision was given effect by the Supreme Court of Okla­
homa in the case of B o a rd  o f  R e g e n ts  V. C h ild ers, State 
A u d ito r  (July 9, 1 9 4 6 ) ,  197 Okla. 350 ,  170 Pac. 
( 2 d )  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. T h e  Constitution o f Oklahom a, Article 1, Sec­
tion 1, provides that “ the State o f Oklahoma is an 
inseparable part of the Federal U nion, and the Con­
stitution o f the United States is the supreme law of 
the land.”  T h e  same constitution, in Article 15, Sec-



B r i e f  o f  R e s p o n d e n t s 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 o f the United States, and 
the Constitution of the State o f O klahom a.”  It is the 
established practice o f the courts of Oklahoma to con­
strue grants of power in such a way as to comply with  
constitutional requirements. E x  pa rte T in d a ll, 102  
Okla. 192,  2 0 0 , 22 9  Pac. 125,  132 ;  In  re : A s s e s s ­
m en t o f  K a n sa s C i t y  S o u th er n  R a ilw a y  C o m p a n y ,  
168 Okla. 49 5 ,  33 Pac. ( 2 d )  77 2 . “ T h e statutes o f  
Oklahoma are construed in connection with and in 
subordination to the Constitution of the United States 
* * O v e r to n  V. State, 7 Okla. Cr. 2 0 3 , 2 0 5 , 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 C o n ­
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. 1 8 ) ,  
for the Oklahom a Supreme Court to hold that the 
State Regents are under a m a n d a to r y  d u ty  to provide 
for that training, consistently with the policy of segre­
gated education, whenever it is clear that there are 
Negroes w ho 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 S ta te  
e x r e l .  B l u f o r d v .  C an ad a  ( 1 9 4 1 ) ,  3 4 8  M o .  298 ,  309.  
153 S . W .  ( 2d )  12, 17:

' I( is the duty of this court to maintain M is­
souri’s policy of segregation so long as it does not 
come in conflict with the Federal Constitution. It



10 S i p u e l  v .  B o a r d  o f  R e g e n t s  e t  a l .

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 A m erica n  P o w e r  and L ig h t  C o m p a n y  v. 
Securities and E x c h a n g e  C o m m is s io n , 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 o f the law w ith which they con­
curred, when they said in their brief in the Supreme 
Court of O klahom a:

‘ ‘T h e Constitution and laws of the United States 
and State of Oklahom a require that equal facilities 
be afforded all citizens of the State. T h e  d u ty of 
m a k in g  such  equ al p r o v is io n s  w a s delegated to the 
B o a rd  o f  R e g e n ts  o f  H ig h e r  E d u ca tio n . This duty 
is incumbent upon the Board by virtue of their 
office”  (R . 4 9 , 5 0 ) .

T h is reasonable and tenable declaration of the law 
of Oklahom a, by its highest court, w ill be accepted 
by this Court as an authoritative definition of the 
m a n d a to r y  d u ty  of the State Regents for Higher Edu­
cation under the State law. T a m p a  W a te r  W orks 
C o m p a n y  V. T a m p a , 199 U .S . 2 4 1 , 2 4 4 ; D ou g la sV . 
N e w  Y o r k ,  N e w  H a v e n  and H a r tfo r d  R a ilroa d  C om ­
p a n y , 27 9  U .S . 3 7 7 , 3 8 6 ; A tc h is o n , T o p e k a  and 
Santa F e  R a ilroa d  C o m p a n y  V. R a il C o m m iss io n  of 
C a liforn ia , 283  U .S . 3 8 0 , 3 9 0 : S en n  V. T ile  Layers 
P ro te c tiv e  U n io n , 301 U .S . 4 6 8 , 4 7 7 ; U n ite d  States
V. T e x a s , 3 1 4  U .S . 4 8 0 , 4 8 7 ; A lle n -B r a d le y  Local V. 
W isc o n s in  E m p lo y m e n t  R ela tio n s  B o a rd , 315  U.S. 
74 0 , 74 6 . T h is Court w ill not accept an argument 
which ‘ ‘but disputes the correctness o f 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, i f  the mean­
in g  a ffixed  to  the sta tu te  b y  th e co u rt b e lo w  be ac-



B r i e f  o f  R e s p o n d e n t s 11
cepted, every basis for such contended discrimination 
disappears.”  Q u o n g  H a m  W a h  C o .  V. In d u stria l
A cciden t C o m m is s io n , 23 5  U .S . 4 4 5 , 4 4 9 .

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

The decisions o f this Court consistently have recog­

nized the validity o f racial segregation in education under 
the Fourteenth Amendment, provided that all races are 
accorded equal, or substantially equal, facilities. P lessy  V. 
Ferguson, 163 U .S . 5 3 7 , 5 4 4 ; C u m m in g  V. C o u n t y  B o a rd  

o f E du cation  o f  R ic h m o n d  C o u n t y ,  175 U .S . 5 2 8 ; B erea  

College V. K e n tu c k y , 211 U .S . 4 5 , 5 5 ; L o n g  L u m  V. R ice, 

275 U .S. 78.

In M isso u ri e x  rel. G a in es  V. C an ad a, 305  U .S . 33 7 , 

344, this Court reaffirmed this principle, stating it as “ the 

obligation of the state to provide Negroes with advantages 

for higher education su b sta n tia lly  equ al to the advantages 

afforded to white students,”  and that the fulfillment of 

said obligation, ‘ ‘by furnishing equ al facilities in separate 

schools, * * * has been sustained by our decisions.”  T he  

petitioner's counsel accept this view repeatedly in their brief 

(Pp. 8, 10, 1 3 ) , and take their stand upon the proposition 

that ‘ ‘The decision of the Supreme Court o f Oklahom a is 

inconsistent with and directly contrary to the decision of 

this Court in G a in es  V. C a n a d a ”  (Pet. B. 8 ) .  But the 

distinctions between th? legal and factual situation pre­

sented in the G a in es case and that presented in this case 

are significant and controlling under the very doctrine to 

which the petitioner appeals.



12 S i p u e l  v .  B o a r d  o f  R e g e n t s  e t  a l .

Said distinctions, as will hereinafter be shown, have 
been accurately apprehended and correctly applied by the 

Supreme Court of Oklahoma.

1. T h e basic ground of the decision in the Gaines 
case is stated thus by M r. Chief Justice Hughes:

“ By the operation of the laws o f 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 m u st g o  outside the 
S ta te  to  o b ta in  it”  30 5  U .S . at 3 4 9 .

2. Subsidiary to this main proposition, the opin­
ion in the G a in es 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 3 4 6  and 3 4 7 . T h e decision herein of 
the Supreme Court of Oklahom a expressly declares 
(R . 4 2 )  that:

“ T h e State Regents for Higher Education has 
undoubted authority to institute a law school for 
Negroes at Langston. I t  w o u ld  be th e d u ty  o f that 
b oa rd  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 G a in es 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:

“ W e  must regard the question whether the pro­
vision for the legal education in o th e r  states of Neg­
roes resident in Missouri is sufficient to satisfy the



B r i e f  o f  R e s p o n d e n t s 13

constitutional requirement of equal protection, as
the p iv o t  u p o n  w h ic h  this case tu rn s”  30 5  U .S .
at 348 .

The decision of the Supreme Court o f Oklahoma  
expressly recognizes that the provision in the O kla­
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 . 4 2 ) .

4. In the G a in es 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 c o n tin u e  fo r  
an indefinite p er iod  by reason o f the discretion given 
to the curators o f 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 lon g  as the cu ra tors find it un necessary and im p ra tic -  
able to provide facilities for the legal instruction of 
Negroes within the state.” T h is Court continued “ In 
that view, we cannot regard the discrimination as ex­
cused by what is called its tem p o r a r y  character”  305  
U .S. at 35 1 , 3 5 2 . T h is language implies that a state 
is not required to maintain in its institution for N eg­
roes a duplication of all departments existing in its 
institution for whites, regardless of whether students 
present themselves for training therein.

The decision o f the Supreme Court o f Oklahoma  
specifically points out that “ authority already exists”  
(R . 4 4 )  for the establishment of a separate law school 
within the State, and that, contrary to the situation in 
the G ain es case, ‘ ‘ it is the m a n d a to r y  d u t y ”  o f the State 
Regents for Higher Education “ to provide a separate 
U w  school for Negroes upon demand or substantial 
notice as to patronage therefor” (R . 5 0 ) .  Hence, the 
possibility o f indefinite continuance of discrimination, 
upon which the Gaines decision turned, does not exist 
in Oklahoma.

5. T he petitioner’s counsel make much of an alleged 
misconception by the Supreme Court o f Oklahoma



1 4 Sipuel v. Board of Regents et a l .

that the petitioner in the G a in es case had unsuccessfully 
demanded from Lincoln University an education in 
law. T h is alleged misconception vanishes if the opin­
ion of the Oklahom a court is read with attention. The 
opinion in the G a in es case (3 0 5  U .S . 3 4 2 )  states that 
the petitioner, on applying for admission to the Uni­
versity of Missouri, was advised:

“ T o  communicate with the president of Lincoln
University an d the latter directed p etitio n er ’s atten-
. • tt
tio n

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 
G a in es case d id  c o m m u n ica te  w ith 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. T h e 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 assu m e  he applied to Lincoln 
University for instruction there in the law ” (R . 45), 
but its stress upon the effect o f this communication 
was that after it “ the authorities in charge of the school 
for higher education o f 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.

T h e Oklahom a 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. W hen it was 
suggested that this conduct justified the inference that 
a law course in a separate school w ould not be accept­
able to her, no disclaimer was made on her behalf 
(R . 3 9 ) .  T h e  Oklahom a 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



15B r i e f  o f  R e s p o n d e n t s

for Negroes. In the absence thereof, said Court held 
that the failure to  m a intain  a sc h o o l o f  la w  fo r  N e g ­
roes, in readiness fo r  so m e  p o ssib le  fu tu r e  N e g r o  a p p li­
cant, was not a violation of the Fourteenth A m end­
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. T h is rule finds support in numerous 
well-reasoned authorities. B lu fo r d  V. C a n a d a , 32  Fed. 
Supp. 7 0 7 ; S ta te e x  rel. B lu fo r d  V. C a n a d a , 3 4 8  M o . 
298, 153 S .W . (2 d )  12 ; S ta te e x  rel. M ich a el  V. W i t -  
ham, 179 Tenn. 2 5 0 , 165 S .W . (2 d )  3 7 8 .

6. The petitioner’s counsel make much of the agreed 
stipulation of fact concerning the special facilities for 
training in the Oklahom a law and procedure afforded 
by the University of Oklahom a School o f L aw  (Pet.
B. 1 9 ) . T h is stipulation covers matters which this 
Court in the G a in es case held to be “ beside the point” 
305 U .S . at 34 9 . These special advantages can be fur­
nished petitioner as well in a separate school for N eg­
roes as in the University of Oklahom a, if she w ill but 
indicate effectively to the proper authorities her w ill­
ingness to accept training therein. 7

7. T he 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, 1 3 ) .  T h e  opinion of the Supreme 
Court of Oklahoma adequately demonstrates the im ­
materiality of this (R . 5 0 ) ,  and, since counsel makes 
no effort to rebut the same in their brief, we assume 
that they do not make any point o f it in this Court. 
Compare G ilch rist  V. In te r b o r o u g h  R a p id  T r a n sit  
C o m p a n y , 27 9  U .S . 159, 2 0 8 .



1 6 S i p u e l  v .  B o a r d  o f  R e g e n t s  e t  a l .

SECOND PROPOSITION

THE PETITIONER HAS FAILED TO SEEK RELIEF 
FROM OR AGAINST THE OFFICIALS WHO MAY PRO­
VIDE IT UNDER THE LAW OF OKLAHOMA.

A s 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 o f the several Oklahom a institutions of higher 

education. T h e  Board of Regents o f the University of 

Oklahom a and its administrative authorities have no power 

to alter its functions from those o f an institution for the 

education o f w h ite  stu d en ts  to those o f an institution for 

the education of w h ite  and co lo red  stu d en ts . T h e 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 w ho must make 

the decision whether the resources available will enable them 

to provide separate education in law for the tw o 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 o f the United States by discontinuing all 

State provision for instruction in law, or by opening up 

the single State law school to students o f all races. Hence, 

it is they, and not the authorities o f the University of Okla­

homa, from w hom  and against w hom  the petitioner should 

seek relief. T h is case, therefore, comes under the rule enun­

ciated and applied in C o p p e r w e ld  Steel C o m p a n y  V. Indus-



B r i e f  o f  R e s p o n d e n t s 17
trial C o m m issio n  o f  O h io , 3 2 4  U .S . 780 , 78 5 , wherein this 
Court held:

“ The question o f the propriety o f 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 n o t  p u rsu ed  th e re m e d y  a fford ed  b y  
State la w  fo r  the v in d ica tion  o f  a n y  co n stitu tio n a l  
right it claim ed w a s v io la ted , 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, P ren tis  V. A t ­

lantic C o a st L in e  C o m p a n y ,  211 U .S . 2 1 0 , 2 3 0 ; L a w ren ce

V. St. L o u is -S a n  F ran cisco R a ilw a y  C o m p a n y ,  2 7 4  U .S . 

588, 59 2 ; S t. L o u is -S a n  F ran cisco R a ilw a y  C o m p a n y  V. 
Alabama P u blic  Service C o m m is s io n , 2 7 0  U .S . 56 0 , 56 3 .

The decision of the Supreme Court o f Oklahom a ex­

pressly holds and determines:

(1 )  T h a t 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 )  T h a t such education must be furnished on a 
basis o f equality o f facilities, but, under the established 
law and policy o f the State, in a separate institution;

( 3 )  T h a t only the State Regents for Higher E du­
cation have the authority to provide such education, 
since they constitute the only official body o f the State 
having authority to prescribe the standards and the 
functions and courses of study of the several State in­
stitutions o f higher education;



1 8 S i p u e l  v .  B o a r d  o f  R e g e n t s  e t  a l .

( 4 )  T h a t the duty o f the State Regents to provide 
the petitioner with legal training on a basis of equality 
with that afforded to white students is m a n d a tory  and 
not discretionary;

( 5 )  T h a t 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 )  T h a t the State Regents are the only State offi­
cers that have at their command the State’s revenue 
provided for purposes o f higher education.

O n the basis of this analysis o f 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 o f the Supreme Court o f Oklahom a before them, 

they w ill refuse to do so. Should they, the remedy through 

judicial recourse is clear.

T h e  petitioner could have set this machinery in mo­

tion on A pril 29 , 1 9 4 7 , when the opinion o f the Supreme 

Court o f Oklahom a was filed. T h e 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, Oklahom a, on May 

14, 1 9 4 6 . T hu s, at any time since then, she might have



B r i e f  o f  R e s p o n d e n t s 19
evinced her willingness and desire to accept an education 

in law furnished according to the valid policy o f 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 o f 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 o f segregated education, 

not in securing provision for legal training in accordance 

therewith. It fully justifies the comment o f the Supreme 

Court of Oklahom a: “ T h e  effect o f 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 . 4 7 ) .  T h is 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.

CONCLUSION

W e respectfully submit that the petition for certiorari 

herein should be denied for want of a substantial Federal 

question in that:

(1 )  T h e judgment o f the Supreme Court o f O kla­
homa herein correctly applies the Constitution of the



2 0 S i p u e l  v .  B o a r d  o f  R e g e n t s  e t  a l .

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

( 2 )  T h e  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,

M ac Q. W illiamson,
Attorney General of Oklahoma,

Fred Hansen,
First Assistant Attorney General, 
State Capitol,
Oklahom a C ity, Oklahoma,

M aurice H. M errill,
John B. Cheadle,
Norm an, Oklahoma,

A t t o r n e y s  fo r  R e sp o n d e n ts .

October, 19 47 .







§uyrrmt' (Emtrt of tbr Unittb Btixtts
October Term, 1947

No. 369

ADA LOIS SIPUEL,

v.
Petitioner,

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

Respondents.

ON W R IT  OF C E R TIO R A R I TO T H E  S U P R E M E  CO U RT 

OF T H E  S T A T E  OF O K L A H O M A

BRIEF FOR PETITIONER

T hurgood M arshall,
A mos T. H all,

Counsel for Petitioner.
Robert L. Carter,
Edward R. D udley,
Marian W ynn Perry,
Frank D. Reeves,
Franklin H. W illiams,

Of Counsel.





TABLE OF CONTENTS

PAGE

Opinion of Court Below.--------------------------------------------- 1
Jurisdiction--------------------------------------------------------------  1
Summary Statement of the Matter Involved_________  2

1. Statement of the C ase_________________________  2
2. Statement of F acts--------------------------------------------  4

Assignment of E rrors-------------------------------------------------  7
Question Presented_________________________________  7
Outline of Argument _______________________________  8

Summary of Argument --------------------------------------------- 9
Argument __________________________________________  10

I—The Supreme Court of Oklahoma Erred in Not 
Ordering the Lower Court to Issue a Writ Requir­
ing the Respondents to Admit Petitioner to the 
Only Existing Law School Maintained by the 
State ___________________________________________  10

II—This Court Should Re-Examine the Constitution­
ality of the Doctrine of “ Separate But Equal”  
Facilities ________________________      18
A. Reference to This Doctrine in the G aines Case 

Has Been Relied on by State Courts to Render
the Decision Meaningless_________________ ... 18

B. The Doctrine of “ Separate But Equal”  Is
Without Legal Foundation _____________    27

C. Equality Under a Segregated System Is a
Legal Fiction and a Judicial Myth____________  36
1. The General Inequities in Public Educa­

tional Systems Where Segregation is Re­
quired ____________________________________ 37



11

PAGE
2. On the Professional School Level the In­

equities Are Even More Glaring_________ 40

D. There is No Rational Justification For Segre­
gation in Professional Education and Dis­
crimination Is a Necessary Consequence of 
Any Separation of Professional Students On 
the Basis of Color.___________________________  45

III—The Doctrine of “ Separate But Equal”  Facilities ' 
Should Not Be Applied to This C ase___________  51

Conclusion__________________________________________  52

Table o f  Cases

Bluford v. Canada, 32 F. Supp. 707 (1940) (appeal dis­
missed 8 Cir. 119 F. (2d) 779)____________________  23

Cantwell v. Connecticut, 310 U. S. 296________________  51
Cummings v. Board of Education, 175 U. S. 528______  35
Gong Lum v. Rice, 275 U. S. 78_______________________ 35
Hirabayashi v. U. S., 320 U. S. 81___________________ 33,52
Marsh v. Alabama, 326 U. S. 501_______ _____________  51
Missouri ex rel. Gaines v. Canada, 305 U. S. 337 reh.

den. 305 U. S. 676_________________________ 11,18,20,21
Morgan v. Virginia, 328 U. S. 373_____________ ___— 28,51
Pearson v. Murray, 169 Md. 478, 182 Atl. 590 (1936)_ 19
Plessy v. Ferguson, 163 U. S. 537____________________  31
Railway Mail Association v. Corsi, 326 U. S. 88---  51
Roberts v. City of Boston, 5 Cush. 198 (1849)--------- 32
State ex rel. Bluford v. Canada, 348 Mo. 298, 153 S. W.

(2d) 12 (1941)____________________________________ 24
State ex rel. Gaines v. Canada, 344 Mo. 1238, 131 S. W.

(2d) 217 (1939)__________________________________  22
State ex rel. Gaines v. Canada, 342 Mo. 121, 113 S. W.

(2d) 783 (1937) _____     14,16
State ex rel. Michael v. Whitham, 179 Tenn. 250, 165 S.

W. (2d) 378 (1942)______________________________  25
Steele v. L. N. R. R. Co., 323 U. S. 192________________  34
Strauder v. West Virginia, 100 U. S. 303--------------------28,30



Ill

Authorities Cited

PAGE

American Teachers Association, The Black and White 
of Rejections for Military Service (Aug. 1944)__ 39,48

Biennial Surveys of Education in the United States, 
Statistics of State School Systems, 1939-40 and 
1941-42 (1944) ___________________________________ 38

Blose, David T. and Ambrose Caliver, Statistics of the 
Education of Negroes (A Decade of Progress), 
Federal Security Agency, U. S. Office of Education,
1942 _____________________________________________  38

Cantril, H., Psychology of Social Movements (1941). 47
Clark, W. W., “ Los Angeles Negro Children,”  Educa­

tional Research Bulletin (Los Angeles, 1923)______ 48
Dodson, Dan W., “ Religious Prejudices in Colleges” ,

The American Mercury (July 1946)_______________  43
Klineberg, Otto, Race Differences (1935)_____________  48
Klineberg, Otto, Negro Intelligence cmd Selectice Mi­

gration (New York, 1935)_______________________   48
McGovney, D. 0., “ Racial Residential Segregation by 

State Court Enforcement of Restrictive Agree­
ments, Covenants or Conditions in Deeds is Uncon­
stitutional,”  33 Cal. L. Rev. 5 (1945)____________  49

McWilliams, Carey, “ Race Discrimination and the 
Law” , Science and Society, Volume IX, No. 1, 1945 46

Mvrdal, Gunnar, An American Dilemma (New York, 
1944)___________________________________________29, 46

National Survey of Higher Education for Negroes, Vol.
II, U. S. Office of Education, Washington, 1942 42

*

Peterson, J. & Lanier, L. H., “ Studies in the Compara­
tive Ability of Whites and Negroes,”  Mental Mea­
surement Monograph, 1929_______________  ... ..... 48



IV

PAGE
Report of the President’s Committee on Civil Rights, 

“ To Secure These Rights,”  Government Printing 
Office, Washington, 1947_________________________46,51

Report of the President’s Commission on Higher Edu­
cation, “ Higher Education for American Democ­
racy” , Vol. I, Government Printing Office, Washing­
ton, 1947 _______________________________________39,50

Sixteenth Census of the United States: Population, 
Vol. I ll , Part 4 (1940)__________________________  40

Thompson, Charles H., “ Some Critical Aspects of the 
Problem of the Higher and Professional Education 
for Negroes,”  Journal of Negro Education (Fall, 
1945)____________________________________________  40

Warner, Lloyd W., New Haven Negroes (New Haven, 
1940)____________________________________________  49

Weltfish, Gene, “ Causes of Group Antagonism” , Vol. I, 
Journal of Social Issues_________________________ 47

Statutes Cited

M issouri
Revised Statutes 1929, Section 9618____ 15,16, 21, 23,24

Oklahoma
Constitution, Article XIII-A, Section 2-____ _____ 15,16
Statutes, Sec. 1451B_____________________________15,16

T ennessee
Chapter 43, Public Acts of 1941_______ __________ 25



IN THE

§uprrmr Court of tljr iliuitrfr
October T erm, 1947

No. 369

A da L ois S ipuel,
Petitioner,

v.

Board of Regents of the U niversity of 
Oklahoma, George L. Cross, M aurice 
H. Merrill, George W adsack and R oy 
Gittinger,

Respondents.

ON W R IT  OF C E R TIO R A R I TO T H E  S U P R E M E  C O U R T OF T H E  

ST A T E  OF O K L A H O M A

BRIEF FOR PETITIONER

Opinion of Court Below

The opinion of the Supreme Court of Oklahoma appears 
in the record filed in this cause (R. 35-51) and is reported 
at----- Okla______ , 180 P. (2d) 135.

Jurisdiction

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



2

The Supreme Court of Oklahoma issued its judgment in 
this case on April 29, 1947 (R. 51). Petition for rehearing 
was appropriately filed and was denied on June 24, 1947 
(R. 61). Petition for Certiorari was filed on September 20, 
1947, and was granted by this Court on November 10, 1947,

SUMMARY STATEMENT OF THE MATTER INVOLVED

1. Statement of the Case

Petitioner is a citizen and resident of the State of Okla­
homa. She desires to study law and to prepare herself for 
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 institution maintained 
and supported out of public funds and the only public insti­
tution in the state offering facilities for a legal education. 
She was denied admission. Her qualifications for admission 
to this institution are undenied, and it is admitted that peti­
tioner, except for the fact that she is a Negro, would have 
been accepted as a first-year student in the School of Lav 
of the University of Oklahoma, which is the only state insti­
tution offering instruction in law.

Upon being refused admission solely on account of her 
race and color, petitioner applied to the District Court of 
Cleveland County, Oklahoma, for a writ of mandamus 
against the Board of Regents of the University of Okla­
homa; George L. Cross, President; Maurice II. Merrill, 
Dean of the Law School; Roy Gittinger, Dean of Admis­
sions; and George Wadsack, Registrar, to compel her ad­
mission to the first-year class of the School of Law on the 
same terms and conditions afforded white applicants seek­
ing to matriculate therein (R. 2). The writ was denied



3

(R. 21) and on appeal this judgment was affirmed by the 
Supreme Court of the State of Oklahoma on April 29, 1947 
(R. 51). Petitioner duly entered a motion for a rehearing 
(R. 54) which was denied on June 24, 1947 (R. 61), where- 
upon petitioner now seeks in this Court a review and re­
versal of the judgment below.

The action of respondents in refusing to admit peti­
tioner to the School of Law was predicated upon the 
grounds that: (1) such admission was contrary to the con­
stitution, law and public policy of the state; (2) that 
scholarship aid was offered by the state to Negroes to study 
law outside of the state; and, (3) that no demand had been 
made upon the Board of Regents of Higher Education to 
provide such legal training at Langston University, the 
state institution affording college and agricultural training 
to Negroes in the state.

The Supreme Court of Oklahoma held that:

“ W e conclude that petitioner is fully entitled to 
education in law with facilities equal to those for 
white students, but that the separate education policy 
of Oklahoma is lawful and is not intended to be dis­
criminatory in fact, and is not discriminatory against 
plaintiff in law for the reasons above shown.

“ W e conclude further that as the laws in Okla­
homa now stand this petitioner had rights in addi­
tion to those available to white students in that she 
had the right to go out of the state to the school of 
her choice with tuition aid from the state, or if she 
preferred she might attend a separate law school for 
Negroes in Oklahoma.

“ W e conclude further that while petitioner may 
exercise here preference between those two educa-



4

tional plans, she must indicate that preference by 
demand or in some manner that may be depended 
upon, and we conclude that such requirement for no­
tice or demand on her part is no undue burden upon 
her.

“ W e conclude that up to this time petitioner has 
shown no right whatever to enter the Oklahoma Uni­
versity Law School, and that such right does not exist 
for the reasons heretofore stated”  (R. 51).

In this Court petitioner reasserts her claim that the re­

fusal to admit her to the University of Oklahoma solely be­
cause of race and color amounts to a denial of the equal 
pretection 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 fa­

cilities to Negroes.

2. Statement of 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 lawT in the State of Oklahoma 

(R. 22).

The School of Law in the University of Oklahoma is the 
only law school in the state maintained by the state and



5

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 appro­
priations from public, funds raised by taxation from the citi­
zens and taxpayers of the State of Oklahoma (R. 22-23).

The School of Law of the University of Oklahoma spe­
cializes in law and procedure which regulate the govern­
ment 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 pro­
cedure. 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 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 aforesaid 
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 re­
quired 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



6

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
sions, and Registrar of the University (all respondents 
herein) and was found to be an official transcript entitling 
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 constitutional and statutory provisions re­
ferred to in the answer of respondents herein, petitioner 
was denied admission to the School of Law of the Uni­
versity 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 Law 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 regula­
tions of the said university (R. 24).

Petitioner had 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 Uni­
versity 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 Edu­
cation: (1 ) had notice that this case was pending; and, (2) 
met and considered the questions involved herein; and, (3) 
had no unallocated 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 allocations for such a purpose (R. 24-25).



7

Assignment of Errors

The Supreme Court of Oklahoma erred:

(1) In holding that the separate education policy of Okla­
homa is lawful and is not intended to be discriminatory 
in fact, and is not discriminatory against plaintiff in 
law for the reasons above shown.

(2) In holding that as the laws in Oklahoma now stand this 
petitioner had rights in addition to those available to 
white students in that she had the right to go out of 
the state to the school of her choice with tuition aid 
from the state, or if she preferred she might attend a 
separate law school for Negroes in Oklahoma.

(3) In holding that while petitioner may exercise her 
preference between those two educational plans, she 
must indicate that preference by demand or in some 
manner that may be depended upon, and that such re­
quirement for notice or demand on her part is no undue 
burden upon her.

(4) In holding that petitioner has shown no right whatever 
to enter the Oklahoma University Law School, and that 
such right does not exist for the reasons heretofore 
stated.

(5) In affirming the judgment of the trial court.
\

Question Presented

The Petition for Certiorari in the instant case presented
the following question:

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?



8

OUTLINE OF ARGUMENT

I
The Supreme Court of Oklahoma erred in not ordering 

the lower court to issue a writ requiring the respon­
dents to admit petitioner to the only existing law 
school maintained by the state.

II

This Court should re-examine the constitutionality of 
the doctrine of “ separate but equal” facilities.

A. Reference to this doctrine in the Gaines case has 
been relied on by state courts to render the decision 
meaningless.

B. The doctrine of “separate but equal” facilities is 
without legal foundation.

C. Equality under a segregated system is a legal fiction 
and a judicial myth.

1. The general inequities in public educational sys­
tems where segregation is required.

2. On the professional school level the inequities are 
even more glaring.

D. There is no rational justification for segregation in 
professional education and discrimination is a neces­
sary consequence of any separation of professional 
students on the basis of color.

III

The doctrine of “ separate but equal” facilities should 
not be applied to this case.



9

Summary of Argument

Petitioner here is asserting a constitutional right to a 
legal education on par with other persons in Oklahoma. 
This right can be protected only by petitioner’s admission 
to the law school of the University of Oklahoma, the only 
existing facility maintained by the state. Petitioner, there­
fore, sought a mandatory writ requiring her admission to 
the University of Oklahoma. The state courts have refused 
to grant the relief sought principally because of statutes 
requiring the separation of the races in the state’s school 
system. Petitioner contends that the questions presented 
in this appeal were settled by this Court in Missouri ex rel. 
Gaines v. Canada and that her case both as to facts and law 
conies within the framework of the Gaines case.

Petitioner, however, is forced to raise anew the issue 
considered settled by that decision chiefly because the opin­
ion in the Gaines case was amenable to an interpretation 
that this Court admitted the right of a state to maintain 
a segregated school system under the equal but separate 
theory even where, as here, no provision other than the 
existing facility which is closed to Negroes is available to 
petitioner. Eeference to this doctrine has not only be­
clouded the real issues in cases of this sort but in fact has 
served to nullify petitioner’s admitted rights.

Petitioner is entitled to admission now to the University 
of Oklahoma and her right to redress cannot be conditioned 
upon any prior demand that the state set up a separate 
facility. The opinion in Gaines case is without meaning 
unless this Court intended that decision to enforce the right 
oi a qualified Negro applicant in a case such as here to 
admission instanter to the only existing state facility. The



1 0

equal but separate doctrine has no application in cases of 
this type. The Gaines decision must have meant at least 
this and should be so clarified. Beyond that petitioner con­
tends that the separate but equal doctrine is basicly unsound 
and unrealistic and in the light of the history of its applica­
tion should now be repudiated.

A R G U M E N T

I
The Supreme Court of Oklahoma Erred in Not Order­

ing the Lower Court to Issue a W rit Requiring the 
Respondents to Admit Petitioner to the Only Exist­
ing Law School Maintained by the State.

Petitioner’s constitutional right to a legal education 
arose at the time she made application, as a qualified citizen, 
for admission into the state law school. This privilege ex­
tends to all qualified citizens of Oklahoma and the denial 
thereof to this petitioner constitutes a violation of the Four­
teenth Amendment to the United States Constitution. That 
the action of respondents, constituting the Board of Regents 
of the University of Oklahoma, must be regarded as state 
action has conclusively been established in a long line of 
decisions by this Court, and is not in issue in this case.

It is admitted that: (1) petitioner was qualified to enter 
the law school at the time application was made; that she 
was qualified at the time this case was tried and is now 
qualified; (2) the law school at the University of Oklahoma 
is the only existing facility maintained by the state for the 
instruction of law; (3) petitioner has been denied admission 
to the University law school solely because of race and color; 
(4) respondents herein are state officials. There is no ques­
tion but that if petitioner were not a Negro she would have 
been admitted to the University of Oklahoma Law School.



11

That petitioner had a clear right under these facts to 
have the writ issued requiring these respondents to admit 
her into the State law school was expressly established by 
this Court in Missouri ex rel. Gaines v. Canada}

The Supreme Court of Oklahoma in affirming the lower 
court’s denial of the writ relied upon (1) the segregation 
laws of the state requiring separate educational facilities 
for white and Negro citizens; and, (2) that as a result of 
these segregation statutes a duty was placed upon the peti­
tioner to make a “ demand”  for the establishment of a sepa­
rate law school at some time in the future before applying 
to the University Law School. This new duty as a con­
dition precedent to the exercise of her right to a legal edu­
cation is placed upon petitioner solely because of the segre­
gation statutes of Oklahoma.

The writ was not issued and petitioner has not been ad­
mitted to the only existing law school because the Supreme 
Court of Oklahoma committed error in not following the 
Gaines case, but adopting just the opposite point of view 
which has deprived petitioner of her constitutional right not 
to be discriminated against because of race and color. Under 
the facts in this case the writ should have been issued.

In the Gaines case, petitioner (1) was qualified to seek 
admission into the state law school in Missouri; (2) the 
law school at Missouri was the only law school maintained 
by the State for the instruction of law; (3) Gaines was de­
nied admission to the law school solely on account of race 
and color; and, (4) respondents in the Gaines case were 
state officers. There, this Court held that, despite the find­
ing of the Supreme Court of Missouri that a policy of segre­
gation in education existed in the State, a provision for 
out-of-state aid for Negro students did not satisfy the Four- 1

1 305 U. S. 337 (rehearing denied 305 U. S. 676).



12

teenth Amendment and Gaines was declared entitled to be 
admitted into the state law school “ in the absence of other 
and proper provisions for his legal training within the 
state.”  This Court recognized the fact that no prior de­
mand had been made upon the Curators of Lincoln Uni­
versity to set up a separate law school for Negroes.2

The Oklahoma Supreme Court erroneously relies upon 
the Gaines case for the proposition that “ the authority of a 
State to maintain separate schools seems to be universally 
recognized by legal authorities”  (R. 39). Mr. Chief Justice 
H ughes adequately answered this argument as follows:

“ The admissibility of laws separating races in the 
enjoyment of privileges afforded by the state rests 
wholly upon the quality of privileges which the laws 
give to separated groups within the state.” 3

The Oklahoma Supreme Court held that the segregation 
laws of the State prevent petitioner from entering the only 
state law school:

“ It seems clear to us that since our State policy 
of separate education is lawful, the petitioner may 
not enter the University Law School maintained for 
white pupils”  (R. 44).

The court concluded that this separation policy is not dis­
criminatory against petitioner (R. 51). The reasons ad­
vanced for this conclusion have been adequately met in the 
Gaines case and disposed of favorably to petitioner herein.

In seeking to justify the policy of segregation, which 
provides no law training for Negroes within the State, the 
Oklahoma Supreme Court also relies upon out-of-state

2 305 U. S. 337, 352.
3 Ibid., at p. 349.



13

scholarship aid—a point completely dehors the record in 
this case. The court stated:

“ If a white student desires education in law at an 
older law school outside the State, he must fully pay 
his own way while a Negro student from Oklahoma 
might be attending the same or another law school 
outside the State, but at the expense of this State.

“ It is a matter of common knowledge that many 
white students in Oklahoma prefer to and do receive 
their law training outside the State at their own ex­
pense in preference to attending the University law 
school. Perhaps some among those now attending the 
University Law School would have a like preference 
for an older though out-of-state school but for the 
extra cost to them.

“ Upon consideration of all facts and circum­
stances it might well be, at least in some cases, that 
the Negro pupil who receives education outside the 
state at state expense is favored over his neighbor 
white pupil rather than discriminated against in that 
particular”  (E. 43).

On this point the Gaines case is clear:

“ We think that these matters are beside the point. 
The basic consideration is not as to what sort of 
opportunities other states provide, or whether they 
are as good as those in Missouri, but as to what 
opportunities Missouri itself furnishes to white stud­
ents and denies to Negroes solely upon the ground of 
color.” 4

Under the facts in this case such a policy applied to peti­
tioner is unconstitutional and the suggested substitutes of 
requiring her to elect either out-of-state aid, or demand that 
a new institution be erected for her, are inadequate to meet 
the requirements of equal protection of the law. This addi­
tional duty of requiring petitioner to make a demand upon

4 305 U. S. 337, 349.



14

the Board of Higher Education of Oklahoma to establish a 
separate law school before being able to successfully assert 
a denial by the state of her right to a legal education comes 
by virtue of the segregation statutes of Oklahoma. Clearly 
this duty devolves only upon Negroes and not upon white 
persons and is in itself discriminatory.

There is a striking similarity between the decisions of 
the state courts in the Gaines case and this case on the 
question of the petitioner’s alleged duty to make a “ de­
mand”  for a separate law school as a condition precedent 
to application to the existing law school.

In the Gaines case, the Supreme Court of Missouri 
stated: “ Appellant made no attempt to avail himself of 
the opportunities afforded the Negro people of the State 
for higher education. He at no time applied to the manage­
ment of the Lincoln University for legal training. ” 5

In the decision of the Oklahoma Supreme Court in this 
case, the court stated:

“ Here petitioner Sipuel apparently made no ef­
fort to seek in law in a separate school”  (R. 47).

A  further similarity exists in the statutes of the two 
states, neither of which could reasonably be interpreted to 
place a mandatory duty upon the governing body to supply 
facilities for a legal education to Negro students within the 
state although the Supreme Court of Oklahoma declared 
that had petitioner applied for such legal education, “ it 
would have been their duty to provide for her an oppor-

5 113 S. W . 2d 783, 789 (1937). In the face of this clear statement 
of the facts by the Missouri Court in the Gaines case, the Oklahoma 
court stated that the facts were completely contrary: “ Thus, in Mis­
souri, there was application for and denial of that which could have 
been lawfully furnished, that is, law education in a separate school
. . . ”  (R . 45).



15

tunity for education in law at Langston or elsewhere in 
Oklahoma”  (R. 45). In the Gaines case, the statute (Sec­
tion 9618, Missouri Revised Statute 1929) provides that the 
Board of Curators of Lincoln University were required so 
to reorganize that institution as to afford for Negroes 
“ training up to the standard furnished by the state uni­
versity of Missouri whenever necessary and practicable in 
their opinion.”  This Court interpreted that statute as 
not placing a mandatory duty upon the Missouri officials.

In Oklahoma, the 1945 amendments provided, in Section 
1451 B, that the Board of Regents of Oklahoma Agricul­
tural and Mechanical College should control Langston Uni­
versity and should “ do any and all things necessary to make 
the university effective as an educational institution for 
Negroes of the State.”

In addition, the Oklahoma Constitution, Article XIII-A, 
section 2, provides in part:

“ 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 function and courses of study in each 
of the institutions to conform to the standards pre­
scribed; . . . ”

These vague provisions, lacking even the comparison 
with the standards of the “ white”  university which were 
present in the Missouri statute, were construed by the state 
court as placing a mandatory duty upon the Board of 
Regents to provide education in law for petitioner within 
the State of Oklahoma. Such a duty was not found by the



16

court to come directly from the statute but to flow from 
the requirement of the segregation policy of the state itself.

The Supreme Court of Oklahoma in construing its stat­
utes concerning higher education held that these statutes 
placed a mandatory duty upon the State Regents for Higher 
Education to establish a Negro law school upon demand:

“ When we realize that and consider the pro­
visions of our State Constitution 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 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 pro­
vide a separate law school for Negroes upon demand 
or substantial notice as to patronage therefor.” 
(Italics ours—R. 50.)

The Supreme Court of Missouri in construing its stat­
utes as to higher education for Negroes concluded that:

“ In Missouri the situation is exactly opposite (to 
Maryland). Section 9618 R. S. 1929 authorizes and 
requires the board of curators of Lincoln University 
‘ 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 prac­
ticable in their opinion.’ This statute makes it the 
mandatory duty of the board of curators to estab­
lish a laiv school in Lincoln University ivhenever nec­
essary or practical.”  (Italics ours— 113 S. W. 2d 
783, 791.)

This Court in passing upon the construction of the Supreme 
Court of Missouri of its statutes stated:

“ The state court quoted the language of Section 
9618, Mo. Rev. Stat. 1929, set forth in the margin,



17

making it tlie mandatory duty of the board of cura­
tors to establish a law school in Lincoln University 
‘ whenever necessary and practicable in their opin­
ion.’ This qualification of their duty, explicitly 
stated in the statute, manifestly leaves it to the judg­
ment of the curators to decide when it will be neces­
sary and practicable to establish a law school, and 
the state court so construed the statute”  (305 U. S. 
337, 346-347).

Further evidence that the Supreme Court of Oklahoma 
completely ignored the opinion of this Court in the Gaines 
case appears from the misstatement of fact that Gaines 
actually applied for admission to a separate Negro school 
in Missouri where there was no law school in existence. On 
this point the Oklahoma Supreme Court stated:

“ The opinion does not disclose the exact nature 
of his (Gaines) communication or application to 
Lincoln University, but since Gaines was following 
through on his application for and his efforts to ob­
tain law school instruction in Missouri, we assume 
lie applied to Lincoln University for instruction 
there in the law. ”  (Italics ours—R. 44.)

“ This he did when he made application to Lin­
coln University as above observed, but this petitioner 
Sipuel wholly failed to do”  (R. 46).

“ Apparently petitioner Gaines in Missouri was 
seeking first that to which he was entitled under the 
laws of Missouri, that is education in law in a sepa­
rate school”  (R. 47).

The actual facts, as this Court indicated in its opinion in 
the Gaines case, are that Gaines only applied to the Uni­
versity Law School maintained by the State. The record 
in the Gaines case clarifies this point:

“ Q. Now you never at any time made an applica­
tion to Lincoln University or its curators or its offi-



18

cers 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 ap­
plication for any of those rights, did you? A. No 
sir.’ ’ 6

Mr. Chief Justice H ughes in the Gaines opinion quite cor­
rectly states the facts:

“ In the instant case, the state court did note that 
petitioner had not applied to the management of 
Lincoln University for legal training.”  7

The Supreme Court of Oklahoma has shown no valid 
distinction between this case and the Gaines case. Their 
efforts to distinguish the two cases are shallow and without 
merit. In refusing to grant the relief prayed for in this 
case the State of Oklahoma has demonstrated the inevitable 
result of the enforcement of the doctrine of “ separate but 
equal”  facilities, viz, to enforce the policy of segregation 
without any pretext of giving equality.

II
This Court Should Re-Examine the Constitutionality of

the Doctrine of “ Separate But Equal” Facilities.

A. Reference to This Doctrine in the Gaines Case Has 
Been Relied on by State Courts to Render the Deci­
sion Meaningless.

Petitioner herein is seeking a legal education on the 
same basis as other students possessing the same qualifi-

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

7 Missouri ex rel. Gaines v. Canada, 305 U. S. 337, 352.



19

cations. The State of Oklahoma in offering a legal educa­
tion to qualified applicants is prohibited by the Fourteenth 
Amendment from denying these facilities to petitioner 
solely because of her race or color. Although the Four­
teenth Amendment is a prohibition against the denial to 
petitioner of this right, it is at the same time an affirmative 
protection of her right to be treated as all other similarly 
qualified applicants without regard to her race or color.

Respondents rely upon Oklahoma’s segregation statutes 
as grounds for the denial of petitioner’s rights. In order 
to bolster their defense, they seek to place upon petitioner 
the duty of taking steps to have established a separate law 
school at an indefinite time and at an unspecified place 
without any guarantee whatsoever as to equality in either 
the quantity or quality of these theoretical facilities.

The “ separate but equal”  doctrine, based upon the as­
sumption that equality is possible within a segregated sys­
tem, has been used as the basis for the enforcement of the 
policy of segregation in public schools. The full extent of 
the evil inherent in this premise is present in this case 
where the “ separate but equal”  doctrine is urged as a com­
plete defense where the state has not even made the pretense 
of establishing a separate law school.

In the first reported case on the right of a qualified 
Negro applicant to be admitted to the only existing law 
school maintained by the state, the Court of Appeals of 
Maryland, in the face of a state policy of segregation, de­
cided that the Fourteenth Amendment entitled the Negro 
applicant to admission to the only facility maintained:

“ Compliance with the Constitution cannot be de­
ferred at the will of the state. Whatever system it 
adopts for legal education now must furnish equality 
of treatment now. ” 8

Pearson v. Murray, 169 Md. 478, 182 A. 590 (1936).



2 0

The second case involving this point reached this Court 
on a petition for a writ of certiorari to the Supreme Court 
of Missouri.8 The facts in the Gaines case were similar to 
those in the Pearson case except that there was no statu­
tory authorization for the establishment of a separate law 
school for Negroes in Maryland, whereas the State of Mis­
souri contended that there was statutory authorization for 
the establishment of a separate law school with a provision 
for out-of-state scholarships during the interim.

This Court, in reversing the decision of the Supreme 
Court of Missouri (which affirmed the lower court’s judg­
ment refusing to issue the writ of mandamus), held that 
the offering of out-of-state scholarships pending possible 
establishment of a Negro law school in the future within 
the state, did not constitute equal educational opportunities 
within the meaning of the Fourteenth Amendment. Mr. 
Chief Justice H ughes, in the majority opinion held: “ that 
petitioner was entitled to be admitted to the law school of 
the State University in the absence of other and proper 
provision for his legal training within the State. ” 9a This 
issue, as framed by the Court, made unnecessary to its 
decision any holding as to what the decision might he if 
the state had been offering petitioner opportunity for a 
legal education in a Negro law school then in existence in 
the state.

At the time of its rendition, the Gaines decision was 
considered a complete vindication of the right of Negroes to 
admission to the only existing facility afforded by the state, 
even in the face of a state policy and practice of segrega­
tion. This decision, in fact, was considered as being at 
least as broad and as far reaching as Pearson v. Murray, 9

9 Missouri ex rel. Gaines v. Canada, 305 U. S. 337. 
9a 305 U. S. 337, 352.



2 1

supra. This apparently was the intent and understanding 
of the Court itself, for Mr. Justice M cR eynolds, in a sepa­
rate opinion, construed the opinion as meaning that either 
the state could discontinue affording legal training to whites 
at the University of Missouri, or it must admit petitioner 
to the only existing law school.

The Court’s reference to the validity of segregation 10 
laws and its discussion of whether or not there was a man­
datory duty upon the Board of the Negro College in Mis­
souri to establish the facilities demanded in a separate 
school, however, has created unfortunate results. Because of 
this language, courts in subsequent cases, while purporting 
to follow the Gaines decision, have in reality so interpreted 
this decision as to withhold the protection which that case 
intended.

When the Gaines case was remanded to the state court 
after decision here, the Missouri Supreme Court, in quot­
ing from this Court’s opinion, placed great reliance upon 
that portion of the opinion which said:

“ We are of the opinion that the ruling was error, 
and that petitioner was entitled to be admitted to the 
law school of the State University in the absence of 
other and proper provision for his legal training 
within the State.”

By then, Section 9618 of the Missouri Statutes Annotated 
had been repealed and reenacted and was construed as 
placing a mandatory duty upon the Board of Curators of 
the Lincoln University (the Negro college) to establish a 
law school for Negroes. The court concluded that the issu-

10 “The State has sought to fulfill that obligation by furnishing equal 
facilities in separate schools, a method the validity of which has been 
sustained by our decisions.”  Missouri ex ret. Gaines v. Canada, 305 
U. S. 337, 344.



2 2

ance of the writ would be denied if, by the time the case was 
again tried, the facilities at Lincoln University were equiva­
lent to those of the University of Missouri and gave the 
state until the following September to establish such facili­
ties. If they were not equivalent, the writ would be granted. 
Said the court:

“ We are unwilling to undertake to determine con­
stitutional adequacy of the provision now made for 
relator’s legal education within the borders of the 
state by the expedient of coupling judicial notice with 
a presumption of law . . . ”  (131 S. W. 2d 217,
219-220.)

Hence, the Missouri Supreme Court in the second Gaines 
case construed the opinion of this Court as not requiring 
the admission of the petitioner to the existing law school 
but as giving to the State of Missouri at that late date the 
alternative of setting up a separate law school in the future. 
In the event the state exercised that option, petitioner would 
have the right to come into court and test the equality of 
the provisions provided for him as compared with those 
available at the University of Missouri. If no facilities 
were available or those available were unequal, he would 
then be entitled to admission to the University of Missouri 
law school.

Petitioner filed his application for writ of mandamus 
in the Gaines case in 1936. The case reached this Court in 
1938. It was then returned to the Supreme Court of Mis­
souri, and a decision rendered in August 1939. Thereafter, 
the state was given an additional several months to set up 
a law school. Then, petitioner would be entitled to come in 
again and test the equality of the provisions. Presumably, 
therefore, by 1941, four years after he asserted his right 
to admission to the Law School of the University of Mis-



2 3

souri, petitioner might get some redress. During this 
period of time, white students in the class to which he be­
longed would have graduated from law school and would 
have been a year or perhaps more in the actual practice of 
law.

Shortly after the Gaines case, another suit was started 
by a Negro based upon the refusal of the registrar of the 
University of Missouri to admit her to the School of 
Journalism, it being the only existing facility within the 
state offering a course in journalism. Suit was brought 
in the U. S. District Court seeking damages and was dis­
missed. The District Court adopted the construction of 
Section 9618 of Missouri Statutes Annotated, which the 
State Supreme Court had followed in the second Gaines 
decision, and it found that the statute placed a mandatory 
duty on the Board of Curators of Lincoln University to 
set up a School of Journalism for Negroes upon proper 
demand.

In answering plaintiff’s contention that the rights she 
asserted had been upheld by this Court in the Gaines case, 
the District Court said:

“  . . . While this court is not bound by the State 
court’s construction of the opinion of the Supreme 
Court, much respect is due the former court’s opinion 
that the Gaines case did not deprive the State of 
a reasonable opportunity to provide facilities, de­
manded for the first time, before it abrogated its 
established policy of segregation. ” 11

And in dismissing the case, it stated the following as what 
it felt her rights to be under the holding of this Court in the 
Gaines case:

“ Since the State has made provision for equal 
educational facilities for Negroes and has placed the 11

11 Bluford v. Canada, 32 F. Supp. 707, 710 (1940).



24

mandatory duty upon designated authorities to pro­
vide those facilities, plaintiff may not complain that 
defendant has deprived her of her constitutional 
rights until she has applied to the proper authorities 
for those rights and has been unlawfully refused. 
She may not anticipate such refusal. ’ ’ 12

Thus, the District Court construed the Gaines case as 
requiring a petitioner to apply to the board of the Negro 
college where a statutory duty was placed upon them to 
provide the training desired and await their refusal before 
he could assert any denial of equal protection, even in the 
face of the patent fact that there was only one facility in 
existence at the time of application which was maintained 
exclusively for whites.

The next case was State ex rel. Bluford v. Canada, 153 
S. W. (2d) 12 (1941). Petitioner in this case sought by 
writ of mandamus to compel her admission to the School of 
Journalism at the University of Missouri. The court de­
nied the writ on the ground that the state could properly 
maintain a policy of segregation and that its right to so do 
had this Court’s approval. Section 9618 of the Missouri 
Statutes Annotated wTas again construed as placing upon 
the Board of Curators of Lincoln University a mandatory 
duty to establish facilities at Lincoln University equal to 
those at the University of Missouri. The court held that 
although no School of Journalism was available there, the 
board was under a duty to open new departments on de­
mand and was entitled to a reasonable time after demand 
to establish the facility. Only after a demand of the board 
of the Negro college and a refusal within a reasonable time, 
or an assertion by the board that it was unable to establish 
the facility demanded, would admission of a Negro to the 
existing facility be granted. This decision construed the

12 32 Fed. Supp. 707, 711.

i



25

Gaines case as meaning that a Negro must not only first 
make a demand upon the board of the Negro school, but 
that there must either be an outright refusal or failure to 
establish the facilities within a reasonable time before a 
petitioner could successfully obtain redress to which he was 
entitled under the Gaines decision.

In 1942, in the case of State ex rel. Michael v. Whithorn 
(165 S. W. (2d) 378), six Negroes sought by writ of man­
damus admission to the graduate and professional schools 
of the University of Tennessee. The cases were consolidated, 
and while pending, the state passed a statute on February 
13,1941, Chapter 43 of the Public Acts of 1941, which stated 
in part as follows:

“ Be it enacted by the General Assembly of the 
State of Tennessee, That the State Board of Edu­
cation and the Commissioner of Education are hereby 
authorized and directed to provide educational train­
ing and instruction for Negro citizens of Tennessee 
equivalent to that provided at the University of Ten­
nessee for white citizens of Tennessee.”

The court held that the Board of Education was under 
a mandatory duty to establish graduate facilities and pro­
fessional training for Negroes equivalent to that at the 
University of Tennessee upon demand and a reasonable ad­
vance notice. The statute, the court held, provided a com­
plete and full method by which Negroes may obtain edu­
cational training and instruction equivalent to that at the 
University of Tennessee.

As the Gaines case was there construed, a Negro seeking 
professional or graduate training offered whites at the State 
University must: (1 ) first make a demand for training in a 
separate school of the Board charged with the duty of pro­
viding equal facilities for Negroes; and, (2) give that Board



2 6

a reasonable time thereafter to set up the separate facility 
before a petitioner could successfully bring himself within 
the holding of the Gaines case. Even the mere statutory 
declaration of intent adopted while the case was pending, 
although unfulfilled, was found by the Tennessee Supreme 
Court to be an adequate answer to petitioner’s assertion of 
a denial of equal protection. And this even though this 
Court had clearly and conclusively disposed of that con­
tention in the Gaines case.

Finally, the State of Oklahoma, relying upon these latter 
decisions, refused to admit petitioner to the law school of 
the University of Oklahoma on the grounds that the segre­
gation statutes of Oklahoma are a complete bar to peti­
tioner’s claimed right to attend the only law school main­
tained by the state and that she must, therefore, make a 
demand on certain officials to establish a separate law school 
for her.

The Supreme Court of Oklahoma, therefore, construed 
the decision in the Gaines case as follows: “ The reasoning 
and spirit of that decision of course is applicable here, that 
is, that the state must provide either a proper legal training 
for petitioner in the state, or admit petitioner to the Uni­
versity Law School. But the very existence of the option 
to do the one or the other imports the right or an oppor­
tunity to choose the one of the two courses which will follow 
the fixed policy of the state as to separate schools, and 
before the courts should foreclose the option the oppor­
tunity to exercise it should be accorded”  (R. 47).

At the very least the Gaines case means, we submit, that 
a state cannot bar a qualified Negro from the only existing 
facility in spite of its policy of segregation. Moreover, the 
burden of decision as to whether the segregated system will 
be maintained is upon the state and not upon an aggrieved



27

Negro who seeks the protection of the federal constitution. 
As a party whose individual constitutional rights have been 
infringed, petitioner is entitled to admission to the law 
school of the University of Oklahoma now. Any burden 
placed upon her which is not required of other law school 
applicants is a denial of equal protection. Her rights cannot 
be defeated nor her assertion thereof be burdened by re­
quiring that she demand a state body to provide her with 
a legal education at some future time. The state is charged 
with the responsibility of giving her equal protection at 
the time she is entitled to it. The shams and legalism which 
have been raised to bar her right to redress must not be 
allowed to stand in the way.

The basic weakness of the Gaines decision was that while 
recognizing that petitioner’s only relief and redress was 
admission to the existing facility, the opinion created the 
impression that this Court would give its sanction even in 
cases of this type, to a state’s reliance upon the “ equal but 
separate”  doctrine. This Court, therefore, must reexamine 
the basis for its statement asserting the validity of racial 
separation which statement has been used to deny to peti­
tioner the protection of the constitutional right to which 
she is entitled.

B. The Doctrine of “Separate But Equal”  Is Without 
Legal Foundation.

Classifications and distinctions based on race or color 
have no moral or legal validity in our society. They are 
contrary to our constitution and laws, and this Court has 
struck down statutes, ordinances or official policies seeking 
to establish such classifications. In the decisions concerning 
intrastate transportation and public education, however, 
this Court appears to have adopted a different and anti-



tlietical constitutional doctrine under which racial separa­
tion is deemed permissible when equality is afforded. An 
examination of these decisions will reveal that the “ separate 
but equal”  doctrine is at best a bare constitutional hypothe­
sis postulated in the absence of facts showing the circum­
stances and consequences of racial segregation and based 
upon a fallacious evaluation of the purpose and meaning 
inherent in any policy or theory of enforced racial sepa­
ration.

Many states have required segregation of Negroes from 
all other citizens in public schools and on public convey­
ances. The constitutionality of these provisions has seldom 
been seriously challenged. No presumption of constitu­
tionality should be predicated on this non-action. A similar 
situation existed for many years in the'field of interstate 
travel where state statutes requiring segregation in inter­
state transportation were considered to be valid and en­
forced in several states for generations and until this Court 
in 1946 held that such statutes were unconstitutional when 
applied to interstate passengers.13

The Thirteenth, Fourteenth and Fifteenth Amendments 
were adopted for the purpose of securing to a recently 
emanicipated race all the civil rights of other citizens.14 
Unfortunately this has not been accomplished. The legisla­
tures and officials of the southern states have, through 
legislative policy, continued to prevent Negro citizens from 
obtaining their civil rights by means of actions which only 
gave lip service to the word “ equal.”  One of the most 
authoritative studies made of the problem of the Negro in 
the United States points out that:

“ While the federal Civil Rights Bill of 1875 was 
declared unconstitutional, the Reconstruction Amend-

13 Morgan v. Virginia, 328 U. S. 373.
14 Strauder v. West Virginia, 100 U. S. 303.



29

ments to the Constitution—which provided that the 
Negroes are to enjoy full citizenship in the United 
States, that they are entitled to ‘ equal benefit of all 
laws,’ and that ‘ no state shall make or enforce any 
law which shall abridge the privileges and immunities 
of citizens of the United States’—could not be so 
easily disposed of. The Southern whites, therefore, 
in passing their various segregation laws to legalize 
social discrimination, had to manufacture a legal fic­
tion of the same type as we have already met in the 
preceding discussion on politics and justice. The 
legal term for this trick in the social field, expressed 
or implied in most of the Jim Crow statutes, is 
‘ separate but equal.’ That is, Negroes were to get 
equal accommodations, but separate from the whites. 
It is evident, however, and rarely denied, that there 
is practically no single instance of segregation in the 
South which has not been utilized for a significant 
discrimination. The great difference in quality of 
service for the two groups in the segregated set-ups 
for transportation and education is merely the most 
obvious example of how segregation is an excuse for 
discrimination. Again the Southern white man is in 
the moral dilemma of having to frame his laws in 
terms of equality and to defend them before the 
Supreme Court—and before his own better con­
science, which is tied to the American Creed—while 
knowing all the time that in reality his laws do not 
give equality to Negroes, and that he does not want 
them to do so.”  15

In one of the early cases interpreting these amend­
ments it was pointed out that: “ At the time when they were 
incorporated into the Constitution, it required little knowl­
edge of human nature to anticipate that those who had 
long been regarded as an inferior and subject race would, 
when suddenly raised to the rank of citizenship, be looked 
upon with jealousy and positive dislike, and that state laws

15 Gunnar Myrdal, An American Dilemma (1944), Vol. 1, pages 
580, 581.



might be enacted or enforced to perpetuate the distinctions 
that had before existed. Discrimination against them had 
been habitual. It was well known that, in some States, laws 
making such discriminations then existed, and others might 
well be expected. . . . They especially needed protection 
against unfriendly action in the States where they were 
resident. It was in view of these considerations the 14th 
Amendment was framed and adopted. It was designed to 
assure to the colored race the enjoyment of all of the civil 
rights that under the law are enjoyed by white persons, and 
to give to that race the protection of the General Govern­
ment, in that enjoyment, whenever it should be denied by 
the States. It not only gave citizenship and the privileges 
of citizenship to persons of color, but it denied to any State 
the power to withhold from them the equal protection of the 
laws, and authorized Congress to enforce its provisions by 
appropriate legislation. ’ ’ 16

Mr. Justice S trong in this opinion also stated: “ The 
words of the Amendment, it is true, are prohibitory, but 
they contain a necessary implication of a positive immunity, 
or right, most valuable to the colored race— the right to 
exemption from unfriendly legislation against them dis­
tinctly as colored; exemption from legal discrimination, im­
plying inferiority in civil society, lessening the security of 
their enjoyment of the rights which others enjoy, and dis­
criminations which are steps towards reducing them to the 
condition of a subject race. ” 17

It is unfortunate that the first case to reach this Court 
on the question of whether or not segregation of Negroes 
was a violation of the Fourteenth Amendment should come 
during the period immediately after the Civil War when

18 Strauder v. W est Virginia, supra, at 306.
17 Ibid.



31

the Fourteenth Amendment was regarded as a very narrow 
limitation on state’s rights.

The first expression by this Court of the doctrine of 
“ separate but equal”  facilities in connection with the re­
quirements of equal protection of the law appears in the 
case of Plessy v. Ferguson.™ That case involved the validity 
of a Louisiana statute requiring segregation on passenger 
vehicles. The petitioner there claimed that the statute 
was unconstitutional and void. A  demurrer by the State 
of Louisiana was sustained, and ultimately this Court 
affirmed the judgment of the Louisiana courts in holding 
that the statute did not violate the Thirteenth Amendment 
nor did it violate the Fourteenth Amendment. Mr. Justice 
Brown in his opinion for the majority of the Court pointed 
out that:

“ A  statute which implies merely a legal distinc­
tion between the white and colored races—a distinc­
tion which is founded in the color of the two races, 
and which must always exist so long as white men 
are distinguished from the other race by color—has 
no tendency to destroy the legal equality of the two 
races, or reestablish a state of involuntary servi­
tude . . . ”  (163 U. S. 537, 543).

Mr. Justice B rown, in continuing, stated that the object 
of the Fourteenth Amendment was to enforce absolute 
equality before the law but:

“  . . . Laws permitting, and even requiring, their 
separation in places where they are liable to be 
brought into contact do not necessarily imply the in­
feriority of either race to the other, and have been 
generally, if not universally, recognized as within the 
competency of the state legislatures in the exercise 
of their police power. . . . ”  18 19

18163 U. S. 537, 543.
19 Id. at page 543.



32

It should be noted that this case was based solely on 
the pleadings, and that there was no evidence either before 
the lower courts or this Court on either the reasonableness 
of the racial distinctions or of the inequality resulting from 
segregation of Negro citizens. The plaintiff’s right to 
“ equality”  in fact was admitted by demurrer. The deci­
sion in the Plessy case appears to have been based upon the 
decision of Roberts v. Boston, 5 Cush. 198 (1849), a case 
decided before the Civil War and before the Fourteenth 
Amendment was adopted. In the Plessy case, the majority 
opinion cites and relies upon language in the decision in 
the Roberts case and added: “ It was held that the powers 
of the Committee extended to the establishment of separate 
schools for children of different ages, sexes and colors, 
and that they might also establish special schools for poor 
and neglected children, who have become too old to attend 
the primary school, and yet have not acquired the rudiments 
of learning, to enable them to enter the ordinary schools. ” 20

Mr. Justice H arlan in his dissenting opinion pointed out 
that:

“ In respect of civil rights, common to all citizens, 
the Constitution of the United States does not, I 
think, permit any public authority to knowr the race 
of those entitled to be protected in the enjoyment of 
such rights. Every true man has pride of race, and 
under appropriate circumstances, when the rights of 
others, his equals before the law, are not to be af­
fected, it is his privilege to express such pride and 
to take such action based upon it as to him seems 
proper. But I deny that any legislative body or ju­
dicial tribunal may have regard to the race of citizens 
when the civil rights of those citizens are involved. 
Indeed such legislation as that here in question is 
inconsistent, not only with that equality of rights

20 Id. at pages 544-545.



3 3

which pertains to citizenship, national and state, but 
with the personal liberty enjoyed by every one within 
the United States”  (163 U. S. 537, 554-555).

and
“ There is no caste here. Our Constitution is 

color-blind, and neither knows nor tolerates classes 
among citizens. In respect of civil rights, all citizens 
are equal before the law. The humblest is the peer 
of the most powerful. The law regards man as man, 
and takes no account of his surroundings or of his 
color when his civil rights as guaranteed by the su­
preme law of the land are involved. It is therefore 
to be regretted that this high tribunal, the final ex­
positor of the fundamental law of the land, has 
reached the conclusion that it is competent for a state 
to regulate the enjoyment by citizens of their civil 
rights solely upon the basis of race”  (163 S. 537, 
559).

More recent decisions of the Supreme Court support Mr. 
Justice Harlan’ s  conclusion.21 In re-affirming the invalidity 
of racial classification by governmental agencies, Mr. Chief 
Justice Stone speaking for the Court in the case of Hira- 
bayashi v. United States stated: “ Distinctions between
citizens solely because of their ancestry are by their very 
nature odious to a free people whose institutions are founded 
upon the doctrine of equality. For that reason legislative 
classification or discrimination based on race alone has 
often been held to be a denial of equal protection. ” 22

In the same case, Mr. Justice M urphy filed a concurring 
opinion in which he pointed out that racial distinctions 
based on color and ancestry “ are utterly inconsistent w7ith 
our traditions and ideals. They are at variance with the 
principles for which we are now waging war. ’ ’ 23

21 Hirabayashi v. United States, 320 U. S. 81.
22 Id. at page 100.
23 Id. at page 110.



34

Mr. Justice Murphy in a concurring opinion in a case 
involving discrimination against Negro workers by a rail­
road brotherhood acting under a federal statute (Railway 
Labor Act) pointed out:

“ Suffice it to say, however, that this constitutional 
issue cannot be lightly dismissed. The cloak of 
racism surrounding the actions of the Brotherhood 
in refusing membership to Negroes and in entering 
into and enforcing agreements discriminating against 
them, all under the guise of Congressional authority, 
still remains. No statutory interpretation can erase 
this ugly example of economic cruelty against colored 
citizens of the United States. Nothing can destroy 
the fact that the accident of birth has been used as 
the basis to abuse individual rights by an organiza­
tion purporting to act in conformity with its Con­
gressional mandate. Any attempt to interpret the 
Act must take that fact into account and must realize 
that the constitutionality of the statute in this respect 
depends upon the answer given.

“ The Constitution voices its disapproval when­
ever economic discrimination is applied under au­
thority of law against any race, creed or color. A 
sound democracy cannot allow such discrimination to 
go unchallenged. Racism is far too virulent today to 
permit the slightest refusal, in the light of a Consti- 
tion that abhors it, to expose and condemn it when­
ever it appears in the course of a statutory interpre­
tation. ’ ’ 24

The doctrine of “ separate but equal”  treatment recog­
nized in Plessy v. Ferguson was arrived at not by any study 
or analysis of facts but rather as a result of an ad hominem 
conclusion of “ equality”  by state courts. As a matter of 
fact, this Court has never passed directly upon the question 
of the validity or invalidity of state statutes requiring the

24 Steele v. L. N. R. R. Co., 323 U. S. 192, 209.



35

segregation of the races in public schools. The first case 
on this point in this Court is Cummings v. Richmond County 
Board of Education,25 The Board of Education of Rich­
mond County, Georgia, had discontinued the only Negro 
high school but continued to maintain a high school for 
white pupils. Petitioner sought an injunction to restrain 
the board from using county funds for the maintenance of 
the white high school. The trial court granted an injunction 
which was reversed by the Georgia Supreme Court and af­
firmed by this Court. The opinion written by Mr. Justice 
Harlan expressly excluded from the issues involved any 
question as to the validity of separate schools. The opinion 
pointed out:

“ It was said at the argument that the vice in the 
common-school system of Georgia was the require­
ment that the white and colored children of the state 
be educated in separate schools. But we need not 
consider that question in this case. No such issue 
was made in the pleadings”  (175 U. S. 528, 543).

In the case Gong Lum v. Rice,26 the question was raised 
as to the right of a state to classify Chinese as colored and to 
force them to attend schools set aside for Negroes. In that 
case the Court assumed that the question of the right to 
segregate the races in its educational system had been de­
cided in favor of the states by previous Supreme Court 
decisions.

The next school case was the Gaines case which has been 
discussed above. In that case this Court without making an 
independent examination of the validity of the doctrine of 
“ separate but equal”  facilities stated: “ The state has 
sought to fulfill that obligation by furnishing equal facili-

25175 U. S. 528.
26 275 U. S. 78.



36

ties in separate schools, a method the validity of which has 
been sustained by our decisions.”  This Court cited as au­
thority for this statement the decisions which have been 
analyzed above.

Segregation in public education helps to preserve and 
enforce a caste system which is based upon race and color. 
It is designed and intended to perpetuate the slave tradi­
tion sought to be destroyed by the Civil War and to prevent 
Negroes from attaining the equality guaranteed by the fed­
eral Constitution. Racial separation is the aim and motive 
of paramount importance—an end in itself. Equality, even 
if the term be limited to a comparison of physical facili­
ties, is and can never be achieved.

The only premise on which racial separation can be 
based is that the inferiority and the undesirability of the 
race set apart make its segregation mandatory in the inter­
est of the well-being of society as a whole. Hence the very 
act of segregation is a rejection of our constitutional axiom 
of racial equality of man.

The Supreme Court in Plessy v. Ferguson, as we have 
seen, without any facts before it upon which to make a 
valid judgment adopted the “ separate but equal”  doctrine. 
Subsequent cases have accepted this doctrine as a constitu­
tional axiom without examination. Hence what was in re­
ality a legal expedient of the Reconstruction Era has until 
now been accepted as a valid and proved constitutional 
theory.

C. Equality Under a Segregated System Is a Legal Fic­
tion and a Judicial Myth.

There is of course a dictionary difference between the 
terms segregation and discrimination. In actual practice, 
however, this difference disappears. Those states which



37

segregate by statute in the educational system have been 
primarily concerned with keeping the two races apart and 
have uniformly disregarded even their own interpretation 
of their requirements under the Fourteenth Amendment to 
maintain the separate facilities on an equal basis.

1. The General Inequities in Public Educational 
Systems W here Segregation Is Required.

Racial segregation in education originated as a device to 
“ keep the Negro in his place” , i. e., in a constantly inferior 
position. The continuance of segregation has been synony­
mous with unfair discrimination. The perpetuation of the 
principle of segregation, even under the euphemistic theory 
of “ separate but equal” , has been tantamount to the perpet­
uation of discriminatory practices. The terms “ separate”  
and “ equal”  can not be used conjunctively in a situation 
of this kind; there can he no separate equality.

Nor can segregation of white and Negro in the matter 
of education facilities be justified by the glib statement 
that it is required by social custom and usage and generally 
accepted by the “ society”  of certain geographical areas. 
Of course there are some types of physical separation which 
do not amount to discrimination. No one would question 
the separation of certain facilities for men and women, for 
old and young, for healthy and sick. Yet in these cases no 
one group has any reason to feel aggrieved even if the 
other group receives separate and even preferential treat­
ment. There is no enforcement of an inferior status.

This is decidedly not the case when Negroes are seg­
regated in separate schools. Negroes are aggrieved; they 
are discriminated against; they are relegated to an inferior 
position because the entire device of educational segregation 
has been used historically and is being used at present to



3 8

deny equality of educational opportunity to Negroes. This 
is clearly demonstrated by the statistical evidence which 
follows.

The taxpayers’ dollar for public education in the 17 
states and the District of Columbia which practice com­
pulsory racial segregation was so appropriated as to de­
prive the Negro schools of an equitable share of federal, 
state, county and municipal funds. The average expense 
per white pupil in nine Southern states reporting to the 
U. S. Office of Education in 1939-1940 was almost 212% 
greater than the average expense per Negro pupil.27 Only 
$18.82 was spent per Negro pupil, while the same average 
per white pupil was $58.69.28

Proportionate allocation of tax monies is only one cri­
terion of equal citizenship rights, although an important 
one. By every other index of the quality and quantity of 
educational facilities, the record of those states where seg­
regation is a part of public educational policy clearly demon­
strates the inequities and second class citizenship such a 
policy creates. For example, these states in 1939-1940 gave 
whites an average of 171 days of schooling per school term. 
Negroes received an average of only 156 days.29 The aver­
age for a white teacher was $1,046 a year. The average 
Negro teacher’s salary was only $601.30

The experience of the Selective Service administration 
during the war provides evidence that the educational in­
equities created by a policy of segregation not only deprive

27 Statistics of the Education of Negroes (A  Decade of Progress) 
by David T. Blose and Ambrose Caliver (Federal Security Agency, 
U. S. Office of Education, 1943). Part I, Table 6, p. 6.

28 Ibid., Table 8.
29 Biennial Surveys of Education in the United States. Statistics 

of State School Systems, 1939-40 and 1941-42 (1944), p. 36.
30 Blose and Caliver, op. cit., supra note 9, Part 1, p. 6, Table 7.



3 9

the individual Negro citizens of the skills necessary to a 
civilized existence and the Negro community of the leader­
ship and professional services it so urgently needs, but also 
deprive the state and nation of the full potential embodied 
in the intellectual and physical resources of its Negro 
citizens. In the most critical period of June-July 1943, when 
the nation was desperately short of manpower, 34.5% of 
the rejections of Negroes from the armed forces were for 
educational deficiencies. Only 8 % of the white selectees 
rejected for military service failed to meet the educational 
standards measured by the Selective Service tests.31

Lest there be any doubt that this generalization applies 
to Oklahoma as well, let us look at the same data for the 
same period with respect to this state. We find that 16.1% 
of the Negro rejections were for educational deficiency, 
while only 3% of the white rejections were for this reason.32

This demonstration of the effects of inequitable segrega­
tion in education dramatizes one of the key issues which 
this Court must decide. Failure to provide Negroes with 
equal educational facilities has resulted in deprivations to 
the state and nation as well as to the Negro population. 
The Constitution establishes a set of principles to guide 
human conduct to higher levels.33 If the courts reject the 
theory of accepting the lowest common denominator of 
behavior because this standard is so blatantly detrimental 
to the individual citizen, to the state, and to the nation as 
a whole—then they will be exercising the power which the 
Constitution has vested in them for the protection of the 
basic values of our society.

31 The Black and White of Rejections for Military Service. Mont­
gomery, Ala., American Teachers Association (1944), p. 5.

32 Ibid.
33 Higher Education for American Democracy, A Report of the 

President's Commission on Higher Education, Vol. I, 1947, p. 34. 
Government Printing Office.



40

2. On the Professional School Level the Inequities 
Are Even More Glaring.

As gross as is the discrimination in elementary educa­
tion, the failure to provide equal educational opportunities 
on the professional levels is proportionately far greater. 
Failure to admit Negroes into professional schools has cre­
ated a dearth of professional talent among the Negro popu­
lation. It has also deprived the Negro population of 
urgently needed professional services. It has resulted in a 
denial of equal access to such services to the Negro popula­
tion even on a “ separate”  basis.

In Oklahoma, the results of the legal as well as the ex­
tra-legal policies of educational discrimination have de­
prived the Negro population of professional services in the 
fields of medicine, dentistry and law. The extent of this 
deprivation can best be judged by the following data, in 
which the figures represent one lawyer, doctor and dentist, 
respectively, to the following number of white and Negro 
population: 34

Profession White Negro
Law ______________ 643 6,754
Medicine ________ 976 ' 2,165
Dentistrv________ 2,931 8,887

That this critical situation is not peculiar to Oklahoma 
alone but is an inevitable result of the policy of racial 
segregation and discrimination in education is demonstrated 
by an analysis made by Dr. Charles H. Thompson.35 He 
states that:

“ In 1940 there were 160,845 white and 3,524 Negro 
physicians and surgeons in the United States. In

34 Based on data in Sixteenth Census of the United States: Popu­
lation, Vol. I ll , Part 4, Reports by States (1940).

35 Charles H. Thompson, “ Some Critical Aspects of the Problem 
of the Higher and Professional Education for Negroes,” Journal of 
Negro Education (Fall 1945), pp. 511-512.



41

proportion to population these represented one physi­
cian to the following number of the white and Negro 
population, respectively:

Section W h ite N eg ro

U. S....... ........ _ _______ 735 3,651
North ______ _________ 695 1,800*
South ---------- _________ 859 5,300*
W est_______ _________ 717 2,000*
Mississippi —_________ 4,294 20,000*

“ A similar situation existed in the field of dentis
try, as far as the 67,470 white and 1,463 Negro den
tists were concerned:

Section W h ite N eg ro

U. S________ _________ 1,752 8,800*
North ______ 1,555 3,900*
South ______ _________ 2,790 14,000*
West _______ _________  1,475 3,900*
Miss________ _________  14,190 37,000*

“ In proportion to population there are five times 
as many doctors and dentists in the country as a 
whole as there are Negro doctors and dentists; and 
in the South, six times as many. Even in the North 
and West where we find more Negro doctors and 
dentists in the large urban centers, there are two and 
one-half times as many white dentists and doctors 
as Negro.

“ Law—In 1940 there were 176,475 white and 
1,052 Negro lawyers in the U. S. distributed in pro­
portion to population as follows:

Section White Negro
U. S__________________ 670 12,230
North _______________  649 4,000*
South ________   711 30,000*
W est________________  699 4,000*
Miss_________________  4,234 358,000*

* To the nearest hundred or thousand.



42

“ There are 18 times as many white lawyers as 
Negro lawyers in the country as a whole; 45 times 
as many in the South; and 90 times as many in Mis­
sissippi. Even in the North and West there are six 
times as many white lawyers as Negro. With the 
exception of engineering, the greatest disparity is 
found in law.”  (Italics ours.)

The professional skills developed through graduate 
training are among the most important elements of our so­
ciety. Their importance is so great as to be almost self- 
evident. Doctors and dentists guard the health of their 
people. Lawyers guide their relationships in a compli­
cated society. Engineers create and service the technology 
that has been bringing more and more good to more and 
more people. Teachers pass on skills and knowledge from 
one generation to another. Social service workers min­
ister to the needs of the less fortunate groups in society and 
reduce the amount of personal hardship, deprivation, and 
social friction.

Yet the action of the State Supreme Court in this case, 
quite aside from any legal considerations, lends the sanc­
tion of that court to a series of extra-legal actions by which 
the various states have carried on a policy of discrimination 
in education. In Oklahoma, the 16 other states and the 
District of Columbia where separate educational facilities 
for whites and Negroes are mandatory, the provisions for 
higher education for Negroes are so inadequate as to de­
prive the Negro population of vital professional services.

The record of this policy of educational segregation and 
denial of professional education to Negroes is clear. In the 
17 states and the District of Columbia in 1939-1940 the fol­
lowing number of states made provisions for the public 
professional education of Negro and white students: 36

3fl Based on data in National Survey of Higher Education for 
Negroes, Vol. II, p. 15. U. S. Office of Education, 1942.



43

Profession White Negro

Medicine --------- --------- 15 0
Dentistry_________  ... 4 0
Law_________________ 16 1
Engineering _________ 17 0
Social Service________ 9 0
Library science ______ 13 1
Pharmacy___________ 14 0

The result has been that the qualified Negro student is 
unable to obtain the professional education for which he 
may be fitted by aptitude and training.

Other sections of the country, too, practice discrimina­
tion against Negroes in professional schools by means of 
“ quotas”  and other devices.37 But only in the South is legal

37 “ Wherever young Americans of ‘minority’ races and religions 
are denied, by the open or secret application of a quota system, the 
opportunity to obtain a medical, law or engineering education, apolo­
gists for the system have a standardized justification.

“In their racial-religious composition, the apologists contend, the 
professions must maintain ratios which correspond to those found in 
the composition of the whole population. Were the institution of 
higher learning left wide open to ambition and sheer merit, they argue, 
the professions would be ‘unbalanced’ by a disproportionate influx of 
Catholics, Negroes and Jews.

“Such racial arithmetic hardly accords with our vaunted principles 
of democratic equality. In effect it establishes categories of citizen­
ship. It discriminates against tens of millions of citizens by denying 
their sons and daughters a free and equal choice of profession. If a 
ratio must be imposed on the basis of race, why not on the pigmen­
tation? Forcing a potentially great surgeon to take up some other 
trade makes sense only on the voodoo level of murky prejudice. It 
not only deprives the citizen of his legal and human rights but, no 
less important, it deprives the country of his potentially valuable ser­
vices.”—from “ Religious Prejudices in Colleges,”  by Dan W . Dodson. 
The American Mercury (July 1946), p. 5. See also: “ Higher Edu­
cation for American Democracy” , A Report of the President’s Com­
mission on Higher Education, U. S. Government Printing Office, 
December, 1947, page 35. “ This practice is a violation of a major 
American principle and is contributing to the growing tension in one 
of the crucial areas of our democracy.”



discrimination practiced and it is thus in the South that 
the Negro population suffers the greatest deprivation of 
professional services.

The record is quite clear, and the implications of the 
above data are obvious. There is another implication, how­
ever, which is not as obvious but is of almost equal impor­
tance in the long-range development of the Negro people. 
From the ranks of the educated professionals come the 
leaders of a minority people. In the course of their daily 
duties they transmit their skills and knowledge to the people 
they serve. They create by their daily activities a better, 
more enlightened citizenship because they transmit knowl­
edge about health, personal care, social relationships and 
respect for and confidence in the law.

The average Negro in the South looks up to the Negro 
professional with a respect that sometimes verges on awe. 
It is frequently the Negro professional who is able to 
articulate the hopes and aspirations of his people. The 
respondents, in denying to the petitioner access to equal 
educational facilities on the professional level within the 
State, also deny to the Negro population of Oklahoma equal 
access to professional services and deprive it of one of the 
most important sources of guidance in citizenship. This 
denial is not only injurious to petitioner, and to other 
Negro citizens of the State, but adverse to the interests of 
all the citizens of the State by denying to them the full 
resources of more than 168,849 Negro citizens.

44



45

D. There is No Rational Justification For Segregation in 
Professional Education and Discrimination Is a Neces­
sary Consequence of Any Separation of Professional 
Students On the Basis of Color.

1. The professional skills developed through graduate 
training are among the most important elements of our 
society. Their importance is so great as to be almost self- 
evident. They are the end results, the products of educa­
tion, but, at the same time, they do not constitute the full 
purpose of education.

“ It is a commonplace of the democratic faith 
that education is indispensable to the maintenance 
and growth of freedom of thought, faith, enterprise, 
and association. Thus the social role of education 
in a democratic society is at once to insure equal 
liberty and equal opportunity to differing individuals 
and groups, and to enable the citizens to understand, 
appraise, and redirect forces, men, and events as 
these tend to strengthen or to weaken their liber­
ties.” 38

It clearly follows then, that segregation is an abortive 
factor in the full realization of the objectives of education. 
First, it prevents both the Negro and white student from 
obtaining a full knowledge of the group from which he is 
separated, thereby infringing upon the natural rights of an 
enlightened citizen. Second, a feeling of distrust for the 
minority group is fostered in the community at large, a 
psychological atmosphere which is not favorable to the 
acquisition of an education or to the discharge of the duties 
of a citizen in redirecting “ forces, men and events” . Lastly, 
one of the effects of segregation in education with respect

38 "Higher Education for American Democracy” , A Report of the 
r resident’s Commission on Higher Education, U. S. Government 
Printing Office, December 1947, p. 5.



46

to the general community is that it accentuates imagined 
differences between Negroes and whites.

This false assumption of differences is given an appear­
ance of reality by the formal act of physical separation. 
Furthermore, as the segregation is against the will of the 
segregated, it produces a very favorable situation for the 
increase of bad feeling, and even conflict, rather than the 
reverse.39

It is clear, then, that in seeking a form of education free 
from any racial restrictions, one wants not only the benefits 
and skills that that education can yield him, but, primarily, 
he desires to live and function as an enlightened citizen in 
a representative democracy.

2. Qualified educators, social scientists, and other ex­
perts have expressed their realization of the fact that 
“ separate”  is irreconcilable with “ equality” .40 There can 
he no separate equality since the very fact of segregation 
establishes a feeling of humiliation and deprivation to the 
group considered to be inferior.41

The recently published report of the President’s Com­
mittee on Civil Rights states:

“ No argument or rationalization can alter this 
basic fact: a law which forbids a group of American 
citizens to associate with other citizens in the ordi­
nary course of daily living creates inequality by im­
posing a caste status on the minority group. ” 42

39 Gunnar Myrdal, An American Dilemma, New York, 1944, Vol. 
I, page 625: “ But they are isolated from the main body of whites, 
and mutual ignorance helps reenforce segregative attitudes and other 
forms of race prejudice” .

40 Gunnar Myrdal, op cit., page 580.
41 Carey McWilliams, “ Race Discrimination and the Law” , Science 

and Society, Volume IX , Number 1, 1945.
42 “ To Secure These Rights” , The Report of the President’s Com­

mittee on Civil Rights, U. S. Government Printing Office, 1947, p. 82.



47

The sociological and political significance of the practice 
of segregation is found not only in the deprivations experi­
enced by the minority group, but by society at large. In one 
of the most exhaustive studies ever conducted on the sub­
ject of segregation, the noted sociologist Gunnar Myrdal has 
stated:

“ Segregation and discrimination have had ma­
terial and moral effects on whites, too. Booker T. 
Washington’s famous remark that the white man 
could not hold the Negro in the gutter without getting 
in there himself, has been corroborated by many 
white southern and northern observers. Through­
out this book, we have been forced to notice the low 
economic, political, legal and moral standards of 
Southern whites—kept low because of discrimination 
against Negroes and because of obsession with the 
Negro problem. Even the ambition of Southern 
whites is stifled partly because, without rising far, it 
is so easy to remain ‘ superior’ to the held-down 
Negroes. ” 43

There are many other authoritative studies which bear out 
Mr. Myrdal’s observations.44

In addition to the psychological atmosphere of distrust 
and the practical inequities which result under a segregated 
system, the citizens of both the majority and minority 
groups are deprived of that inter-change of ideas and atti­
tudes which is so necessary to a full education.

3. No one questions the kind of separation which the 
community imposes in the interest of public safety, con­
venience or welfare. There is ample justification for differ­
ences in the treatment of the old and the young, the healthy

43 Gunnar Myrdal, An American Dilemma, New York, 1944, Vol. 
I, page 644.

44 H. Cantril, Psychology of Social Movements, 1941, pages 78-122; 
Gene Weltfish, “ Causes of Group Antagonism” , Journal of Social 
Issues, Vol. 1.



and the sick, the criminal and the law-abiding. In each of 
these cases the act of separation is justified and is moti­
vated by a desire to protect society at large, and to promote 
the interest of both groups.

There is, however, no rational basis, no factual justifi­
cation for segregation in education on the grounds of race 
or color. This type of segregation is often rationalized on 
the ground that “ Negroes have an inferior mental capacity 
to whites.”  Yet this premise is completely invalid and no 
act of segregation based upon it can be upheld as reason­
able.45 * Scientific studies have been conducted in which rep­
resentative samples of both groups, Negro and white, have 
been placed in nearly identical situations with identical 
tasks to perform. In a study by an eminent sociologist, it 
is stated:

‘ ‘ The general conclusion can be only that the case 
for psychological race differences has never been 
proved. . . . The general conclusion of this book is 
that there is no scientific proof of racial differences 
in mentality. . . . There is no reason, therefore, to 
treat two people differently because they differ in 
their physical type. There is no justification for de­
nying a Negro a job or an education because he is a 
Negro. No one has been able to demonstrate that 
ability is correlated with skin color or head shape 
or any of the anatomical characteristics used to 
classify races. ” 4'1

45 The Black and White of Rejections for Military Service, Ameri­
can Teachers Association, August, 1944, page 29.

Otto Klineberg, Negro Intelligence and Selective Migration, New 
York, 1935.

J. Peterson & L. H. Lanier, “ Studies in the Comparative Abilities 
of Whites and Negroes” , Mental Measurement Monograph, 1929.

W . W . Clark, “ Los Angeles Negro Children” , Educational Re­
search Bulletin, Los Angeles, 1923.

40 Otto Klineberg, Race Diffcretices 343 (1935).



49

Moreover, it has been demonstrated, that in cases where 
no segregation exists, or where it has ceased to exist, the 
results have never been disastrous but often favorable. 
Lloyd W. Warner in his study of New Haven Negroes says:

“  . . . children in New Haven are not taught color 
* consciousness in the schools and develop it only 

slowly from outside influences. There is no discrimi­
nation in the New Haven public-school system. . . . 
There are colored children in four out of every seven 
schools in the city, and in none are they segregated 
by class, seat, or section. Reports indicate, also, that 
the white teachers make no distinction in their treat­
ment of the two races. . . .

“ In many early grades, white and black children 
romp and learn together. Negroes compete without 
restraint or embarrassment . . . and, if proficient, are 
cheered and honored. They debate, sing, and act in 
dramatics, generally without discrimination.”  
* * * * * * * * *

“ There is no feeling of difference among fellow 
teachers, white or black. They entertain each other 
socially and make friends, eat, banquet, talk and play 
cards together. They are united against discrimina­
tion when it shows itself. ’ ’ 47 48

Since all available evidence controverts the theory that 
Negroes have an inferior mental capacity to whites, and 
moreover, since the twTo groups work well together and to 
their mutual advantage, it must be concluded that any claim 
of inferiority is motivated by a desire to perpetuate segre­
gation per se.4S

47 Lloyd W. Warner, New Haven Negroes, New Haven, 1940, pp. 
277-279.

48 D. O. McGovney, “ Racial Residential Segregation by State Court 
Enforcement of Restrictive Agreements, Covenants or Conditions in 
Deeds is Unconstitutional” (1945), 33 Cal. L. Rev. 5, 27 (note 94: 
“When a dominant race, whether white or Negro, demands separa­
tion, it is fallacious to say . . . that the intention and effect is not 
to impose a ‘badge of inferiority’ on the other.” )



4. It may be that the pattern of segregation which has 
existed in the South for more than fifty years cannot be 
abolished instantaneously. But although the term “ grad­
ual”  may be used adjectively in relation to the overall pat­
tern, it should not be used as a rationalization for inaction 
in this case. The Report of the President’s Commission on 
Higher Education, published in December, 1947, advocates 
as its sixth step toward equalizing educational opportuni­
ties the immediate abolition of segregation, in the following 
words:

50

“ The time has come to make public education at 
all levels equally accessible to all, without regard to 
race, creed, sex or national origin.

“ If education is to make the attainment of a more 
perfect democracy one of its major goals, it is im­
perative that it extend its benefits to all on equal 
terms. It must renounce the practices of discrimi­
nation and segregation in educational institutions as 
contrary to the spirit of democracy. ” 49

Only a few months earlier, the Report of the President’s 
Commission on Civil Rights had recommended:

“ The elimination of segregation, based on race, 
color, creed, or national origin, from American life.

“ The separate but equal doctrine has failed in 
three important respects. First, it is inconsistent 
with the fundamental equalitarianism of the Ameri­
can way of life in that it marks groups with the brand 
of inferior status. Secondly, where it has been fol­
lowed, the results have been separate and unequal 
facilities for minority peoples. Finally, it has kept 
people apart despite incontrovertible evidence that 
an environment favorable to civil rights is fostered 
whenever groups are permitted to live and work to-

49 “ Higher Education for American Democracy” , A Report of the 
President’s Commission on Higher Education, U. S. Government 
Printing Office, Washington, December, 1947, p. 38.



51

gether. There is no adequate defense of segrega­
tion. ” 50

All of the studies referred to herein demonstrate that 
segregation inevitably results in inequality and injustice. 
Thus, an objective examination of the facts furnishes the 
basis for a new ruling by this Court—a new ruling which 
will be evolutionary rather than revolutionary.

Ill

The Doctrine of “Separate But Equal” Facilities Should
Not Be Applied to This Case.

The examination of the “ separate but equal”  doctrine 
reveals that it is at best a bare constitutional hypothesis 
based upon a fallacious evaluation of the purpose and 
meaning inherent in any policy or theory of enforced racial 
separation. This Court should not recognize such a doctrine 
in the absence of clear and unmistakable evidence that such 
enforced separation affords the equality guaranteed by the 
Fourteenth Amendment, which “ equality”  this Court has, 
while passing upon the validity of segregation statutes, 
assumed actually to exist.

The asserted right of the State of Oklahoma to enforce 
segregation of the races in public schools even to the extent 
of excluding petitioner from the only law school must be 
weighed against the national interests as set forth in the 
Constitution.51 This Court has re-stated our national policy

,0''To Secure These Rights” , The Report of the President’s Com­
mittee on Civil Rights, U. S. Government Printing Office, 1947, 
p. 166.

Q-: Morgan v. Virginia, 328 U. S. 373; Marsh v. Alabama, 326 
C- S. 501; Cantwell v. Connecticut, 310 U. S. 296; Railway Mail 
Association v. Corsi, 326 U. S. 88.



52

to be opposed to racial classifications because such classifi­
cations are irrational and unreasonable criteria “ odious to 
a free people whose institutions are founded upon the doc­
trine of equality” .52

The flagrant discrimination against the petitioner in this 
case is directly in the teeth of the Fourteenth Amendment 
and was made with full knowledge of the decision of this 
Court in the Gaines case. The respondents only defense is 
a reliance upon certain language in this Court’s opinion. 
Petitioner has already lost more than a year of legal train­
ing which she would have received had she not been a Negro. 
This petitioner’s rights can only be protected by affirmative 
action of this court in recognizing her right to be admitted 
to the Law School of the University of Oklahoma without 
qualifying such relief by apparently recognizing the validity 
of the doctrine of “ separate but equal”  facilities in this 
case.

Conclusion

W herefore, it is respectfully submitted that the judg­
ment of the Supreme Court of Oklahoma should be reversed.

Submitted by,
T hurgood M arshall, 
A mos T. H all,

Counsel for Petitioner.
R obert L. Carter,
E dward R. D udley,
Marian W yn n  Perry,
F rank D. R eeves,
F ranklin H! W illiams,

Of Counsel.

52 See Hirabayashi v. United States, 320 U. S. 81, 100.







§itpmne (Emtrt of tin' HUutfft States
O c t o b e r  T erm, 1947

No. 369

ADA LOIS SEPUEL,
Petitioner,

v.
BOARD OF REGENTS OF THE UNIVERSITY OF 
OKLAHOMA, GEORGE L. CROSS, MAURICE H. 
MERRILL, GEORGE WADSACK and ROY GITTTNGER,

Respondents.

O X  W R IT  OR C E R TIO R A R I TO T H E  S U P R E M E  CO U RT 
OE T H E  ST A T E  OF O K L A H O M A

BRIEF OF AMERICAN CIVIL LIBERTIES UNION, 
AS A M I C U S  C U R I A E

A merican Civil L iberties U nion, 
Amicus Curiae,

A rthur Garfield H ays,
Counsel.

Walter Gellhorn,
Osmond K. F raenkel,

Of the New York Bar,
Of Counsel.

n





I N D E X

PAGE
Interest of A merican Civil L iberties U nion ............. 1

Facts ...............................................................................................  -

Point I.—The requirement that petitioner give notice 
that a separate law school be opened and the 
inevitable delay in opening it cast an unequal 
burden on petitioner .................................................  -1

Point II.—Admission of petitioner to a separate law 
school for Negroes would not constitute equal 
protection .....................................................................  5

Point III.—Segregation of Negroes from whites vio­
lates the equal protection clause ..............................  7

Table of Cases

Gong Lum v. Rice, 275 U. S. 7 8 ...................................... 8

McCabe v. Atchison, T. S. F. Ry., 235 IT. S. 151 ....... 4
Missouri ex rel. Gaines v. Canada, 305 IT. S. 337 .......3, 4, 5
Mitchell v. United States, 313 U. S. 8 0 .......................... 4
Plessy v. Ferguson, 163 U. S. 537 ................................
Strauder v. West Virginia, 100 U. S. 303 ....................  7,8

Constitutional Provisions

Article VI .........
13th Amendment
14th Amendment
15th Amendment

I

OO





Supreme (Hour! at tlje lltt\t?b §>tatrs
October T erm, 1947

No. 369

----------- m  i m  ------------

A da L ois Sipuel,
Petitioner,

v.

Board of R egents of the U niversity of Oklahoma, 
George L. Cross, M aurice H. M errill, George W adsack 
and Roy Gittinger,

Respondents.

on writ of certiorari to the supreme court

OF T H E  ST A T E  OF O K L A H O M A  

----------  m * m ---------

BRIEF OF AMERICAN CIVIL LIBERTIES UNION, 
AS A M I C U S  C U R I A E

The American Civil Liberties Union, which is devoted 
to the furtherance of the civil rights guaranteed by the 
Constitution of the United States, submits this brief in 
the belief that respondents’ refusal to admit petitioner to 
the School of Law of the University of Oklahoma consti­
tutes a violation of that provision of the 14th Amendment 
to the Constitution of the United States which provides 
that no State shall “ deny to any person within its juris­
diction the equal protection of the laws.”



2

The Facts

The facts have been admitted by respondents (E. 22-25). 
Petitioner brought this proceeding in the District Court 
of Cleveland County, Oklahoma, seeking mandamus to 
compel respondents to admit her to the School of Law of 
the University of Oklahoma (E. 2-6). Petitioner is a 
resident and citizen of the United States and of Oklahoma: 
she desires to practice law in Oklahoma and, to that end, 
being fully qualified financially, scholastically and morally, 
applied for admission on January 14, 1946, to the School 
of Law of the University of Oklahoma, the only law school 
maintained by the state (E. 22, 23). Petitioner was 
refused admission solely because she is a Negro (E. 24), 
and this suit followed on April 6 , 1946 (E. 2). Respond- 
ents are the Board of Eegents of the University of Okla­
homa, which has authority as to the admission of students 
to the University, George L. Cross, President of the 
University, Maurice H. Merrill, Dean of the School of 
Law, Eoy Gittinger, Dean of Admissions, and George 
Wadsack, Registrar (E. 3-4, 14). All the personal 
respondents act pursuant to orders of respondent the 
Board of Regents of the University (R. 4, 14).

The University of Oklahoma is maintained by public 
funds raised by taxation, and the School of Law specializes 
in Oklahoma law (R. 23). Indeed, unless petitioner is 
permitted to attend the School of Law, she will be placed 
“ at a distinct disadvantage”  both at the Oklahoma bar 
and in the Oklahoma public service, vis a vis those who 
have gone to the School of Law (R. 23), to which, how­
ever, only whites are admitted (R. 16-17, 23-24).

Petitioner did not apply to the Board of Regents of 
Higher Education of Oklahoma to set up a separate law 
school for Negroes, although after this action was filed



3

that Board considered whether it should open sucli a 
school and concluded that it had no funds so to do and 
that it had never requested or been asked to request such 
funds from the State Legislature (R. 24-25).

The District Court of Cleveland Count}7 denied the writ 
of mandamus (R. 25), on the ground that petitioner had 
not chosen the proper form of action in which to raise 
the Constitutional question (R. 21-22). The Supreme 
Court of Oklahoma affirmed (R. 51). It explicitly refused 
to pass on whether mandamus was the appropriate rem­
edy, and decided “ the merits”  of the claim that failure 
to admit petitioner to the School of Law constituted a 
discrimination “ on account of race contrary to the 14th 
Amendment to the United States Constitution”  (R. 38). 
The reasoning of the Supreme Court was that the state’s 
policy, specifically embodied in its statutes, is to segre­
gate Negroes and whites in its educational institutions, 
that this policy is valid under the language of Missouri 
ex rel. Gaines v. Canada, 305 U. S. 337, and other cases, 
and that if the State may satisfy the 14th Amendment 
by a separate law school for Negroes, it was incumbent 
upon petitioner to make known by demand or other form 
of notice to the Board of Regents of Higher Education 
her desire for separate legal education, which she has 
failed to do (R. 38-51).

POINT I

The requirement that petitioner give notice that a 
separate law school be opened and the inevitable delay 
in opening it cast an unequal burden on petitioner.

Assuming arguendo that Oklahoma could and would, 
after appropriate demand or notice, open a law school 
which petitioner may attend, “ equal”  in the Constitu­



4

tional sense to the law school to which she has applied 
for admission, that fact would not, contrary to the posi­
tion of the Court below and of respondents, indicate 
satisfaction of the equal protection clause. It is not 
asserted that whites are subject to any burden to give 
such notice or make such demand. It is undisputed (R. 
24-25) that there are no State funds available with which 
to open without delay a separate law school. The addi­
tional burden to give notice or make demand and the 
inevitable delay in opening another school in themselves 
make plain the inequality of treatment petitioner has 
been accorded. That inequality is not to be justified by 
reference to the so-called “ valid”  state policy of segre­
gation. Even assuming, without conceding, that separate 
facilities for Negroes may in some instances satisfy the 
demands of equal protection, we start, by reason of the 
Supremacy Clause of the Constitution, Article VI, with 
the 14th Amendment which prohibits the state from deny­
ing to any “ person”  the “ equal protection of the laws.” 
We do not start with the assumption that segregation is 
“ valid”  per se so that additional burdens, both of time 
and circumstance, may be visited on a Negro, asserted 
by the Oklahoma Supreme Court to be the first such to 
desire legal education in Oklahoma (R. 41), in order to 
enable the state to pursue its policy of segregation. The 
right given by the equal protection clause is a personal, 
not a group, right. McCabe v. Atchison, T. S. F. Ry., 
235 IT. S. 151, 161, 162; Mitchell v. United States, 313 
U. S. 80, 97; Missouri ex rel. Gaines v. Canada, supra, 
350, 351. The state may not, in the words of the Amend­
ment, “ deny to any person”  that right. Segregation 
does not justify discrimination, even on the assumption 
that segregation does not demonstrate discrimination.



0

Further, the discrimination is not “ excused by what is 
called its temporary character.”  Missouri ex rel. Gaines 
v. Canada, supra, 352. Petitioner was entitled to “ equal 
protection”  when she applied for admission on January 
14, 1946, to the only law school supported by the state. 
The additional burden and delay imposed upon ber by 
the Court below demonstrate the lack of “ equal protec­
tion”  which she has received.

POINT II

Admission of petitioner to a separate law school 
for Negroes would not constitute equal protection.

Even if we were to assume for the sake of argument 
that a law school physically identical to that to which 
petitioner has applied were available to her, and that 
segregation in some contexts is valid, the segregation of 
petitioner in a separate school to which only Negroes 
would be admitted would, by the very nature of the 
educational process, deny to petitioner the equal protec­
tion to which she is entitled.

The agreed facts of record show that petitioner “ will 
be placed at a distinct disadvantage at the bar of Okla­
homa and in the public service of the aforesaid State with 
persons who have had the benefit of the unique prepara­
tion in Oklahoma law and procedure offered to white 
qualified applicants in the School of Law of the Univer­
sity of Oklahoma, unless she is permitted to attend the 
School of Law of the University of Oklahoma”  (R. 23). 
Petitioner can reach an equal footing at the bar of Okla­
homa and in its public service with white lawyers only 
if she attends the School of Law of the University of 
Oklahoma and participates in its “ unique”  course. Unless



6

she does so, she “ will be placed at a distinct disadvan­
tage.”  It follows that she will be placed at a disadvan­
tage if she is admitted, not to the school giving “ unique” 
preparation, but, to a law school which will educate only 
Negroes, perhaps only herself.

It is plain why the course given at any such separate 
school could not be equal to the “ unique”  course given at 
the Law School of the University. Even the novitiate will 
admit that education, and legal education in particular, 
is not a matter of bricks and mortar or even of books 
and paper. Instructors so successful as to give a 
“ unique”  course could hardly be duplicated. But neither 
is legal education the sole work of the professors. The 
students play a substantial role in individual self-instruc­
tion, and in the education of one another. AVhich lawyer 
is there whose abilities were not sharpened and enhanced 
by the varied personalities, abilities and propensities of 
his fellow students at law school? What makes a great 
law school, the books, the professors, or the students? 
It would be a bold Oklahoman who could say that not 
one white student in the law school of the State Univer­
sity was capable of contributing to the legal education 
of petitioner.

The Court below made much of the fact that petitioner 
is the first Negro to desire legal education within Okla­
homa (R. 41). Will a legal education in which petitioner 
will have few, if any, fellows occupying a similar educa­
tional position be as fruitful as one in which the ideas 
of the official educators will be tested, perhaps rejected, 
by varied intellects within a substantial student body? 
Further, in the absence of the point of view of the white 
one-half or more of the State’s population, those ideas 
could hardly be effectually tested and appreciated. Peti­



7

tioner is entitled to a legal education equal to that of the 
white students, who could contribute to her education 
as well as their own.

POINT III
Segregation of Negroes from whites violates the 

equal protection clause.

The 14th Amendment is one of the three Constitutional 
provisions “ having a common purpose; namely, securing 
to a race recently emancipated, * * * the enjoyment
of all the civil rights that under the law are enjoyed by 
white persons.”  Strauder v. West Virginia, 100 U. S. 
303, 306. Before the Civil War discrimination against 
Negroes had been habitual both in the community’s atti­
tude and in the official laws of the states. Indeed, most 
Negroes were slaves, and the race had long been regarded, 
officially and unofficially, as inferior and subject. The 
13th, 14th, and 15th Amendments -were a reaffirmation of 
the principle that those who were equal in the sight of 
God were equal too in the sight of the Nation. And so, 
the Nation prohibited the States from proceeding upon 
an assumption of the inferiority of Negroes which the 
blood of a great war had washed away. By the equal 
protection clause the Negroes were given “ a positive 
immunity, or right, most valuable to the colored race,— 
the right to exemption from unfriendly legislation against 
them distinctively as colored,— exemption from legal dis­
criminations, implying inferiority in civil society.”  
Strauder v. West Virginia, supra, 307-308. The States 
were prohibited from taking action with respect to the 
Negroes as would be “ a brand upon them, affixed by the



s

law, an assertion of their inferiority, and a stimulant 
to that race prejudice which is an impediment to securing 
to individuals of the race that equal justice which the 
law aims to secure to all others.”  Straucler v. West Vir­
ginia, supra, 368. (Italics ours.)

What more explicit “ brand”  upon petitioner, what 
clearer “ assertion”  of her “ inferiority” , could there be 
than the segregation of her in a law school for Negroes 
only? Segregation in itself serves no rational purpose 
other than that found in the asserted inferiority of the 
Negro. That purpose the Nation would not condone.

Even the case of Plessy v. Ferguson, 163 U. S. 537, 
551, in which segregation of the races in separate rail­
road cars was upheld, recognized that the State could 
not “ stamp”  the Negroes “ with a badge of inferiority”, 
but the Court held that “ solely because the colored race 
chooses to put that construction upon it”  Negroes should 
not assume that segregation implies inferiority, for the 
dominant whites and the state which they control make no 
such assumption. There have been subsequent judicial 
expressions which have followed the Plessy case without 
examining its basic factual assumption that segregation in 
no assertion of inferiority. Gong Lum v. Rice, 275 U. S. 
78, and cases cited. In each case in which segregation has 
been upheld there has been no recognition that or investi­
gation whether segregation of itself implies inferiority. 
Can Oklahoma honestly say today that the official segre­
gation of petitioner and her exclusion from the School of 
Law of the University of Oklahoma, where only whites 
may attend, is based any7 less on a notion of inferiority 
than would be a brand or a chain? The equal protection 
clause loosed the shackles and covered over the scars of



«)

the brands which had been inflicted upon “ any person” . 
No less does that clause shield petitioner from the brand 
of segregation.

The judgment should be reversed.

Respectfully submitted,

A merican Civil L iberties U nion, 
Amicus Curiae,

A rthur Garfield H ays, 
Counsel.

Walter Gellhorn,
Osmond Iy . F raenkel,

Of the New York Bar,
Of Counsel.



.







&ttpmitr QInurt itf the Mmtrft Butts
October T erm, 1947

No. 3fi‘)

ADA LOIS SIPUEL
Petitioner,

v.
BOARD OF REGENTS OF THE UNIVERSITY OF 
OKLAHOMA, GEORGE L. CROSS, MAURICE H. 
MERRILL, GEORGE WADSACK and ROY GITTINGER,

Respondents.

O S  W R IT  OR C E R TIO R A R I TO T H E  S U P R E M E  CO U RT 
OE T H E  ST A T E  OF O K L A H O M A

BRIEF OF AMERICAN CIVIL LIBERTIES UNION, 
AS A M I C U S  C U R I A E

A merican Civil L iberties U nion, 
Amicus Curiae.,

A rthur Garfield H ays,
Counsel.

Walter Gellhorn,
Osmond K. F raenkel,

Of the New York Bar,
Of Counsel.

17





I N D E X

PAGE

Interest of A merican Civil L iberties U nion ............. 1

Facts ...............................................................................................  2

Point I.—The requirement that petitioner give notice 
that a separate law school be opened and the 
inevitable delay in opening it cast an unequal 
burden on petitioner .................................................  11

Point II.—Admission of petitioner to a separate law 
school for Negroes would not constitute equal 
protection ..................................................................... n

Point III.—Segregation of Negroes from whites vio­
lates the equal protection clause ..................................  7

Table of Cases

Gong Lum v. Rice, 275 U. S. 7 8 ...................................... 8

McCabe v. Atchison, T. S. F. Ry., 235 IT. S. 151....... 4
Missouri ex rel. Gaines v. Canada, 305 U. S. 337 .......3, 4, 5
Mitchell v. United States, 313 U. S. 8 0 ........................  4
Plessy v. Ferguson, 163 LT. S. 537 ................................. 8

Strauder v. West Virginia, 100 U. S. 303 ....................  7,8

Constitutional Provisions

Article VI .........
13th Amendment 
14th Amendment 
15th Amendment

'*+' 
GO t>*





(Hmtri af tlje lUnxttb Stairs
October T erm, 1947

No. 369

A da L ois Sipuel,
Petitioner,

v.

Board of R egents of the U niversity of Oklahoma, 
George L. Cross, M aurice H. M errill, George W adsagk 
and Roy Gittinger,

Respondents.

ON W R IT  OF C E R TIO R A R I TO T H E  S U P R E M E  CO U RT 

OF T H E  ST A T E  OF O K L A H O M A

---------- m » i -------------

BRIEF OF AMERICAN CIVIL LIBERTIES UNION, 
AS A M I C U S  C U R I A E

The American Civil Liberties Union, which is devoted 
to the furtherance of the civil rights guaranteed by the 
Constitution of the United States, submits this brief in 
the belief that respondents’ refusal to admit petitioner to 
the School of Law of the University of Oklahoma consti­
tutes a violation of that provision of the 14th Amendment 
to the Constitution of the United States which provides 
that no State shall “ deny to any person within its juris­
diction the equal protection of the laws.”



2

The Facts

The facts have been admitted by respondents (R. 22-25). 
Petitioner brought this proceeding in the District Court 
of Cleveland County, Oklahoma, seeking mandamus to 
compel respondents to admit her to the School of Law of 
the University of Oklahoma (R. 2-6). Petitioner is a 
resident and citizen of the United States and of Oklahoma: 
she desires to practice law in Oklahoma and, to that end, 
being fully qualified financially, scholastically and morally, 
applied for admission on January 14, 1946, to the School 
of Law of the University of Oklahoma, the only law school 
maintained by the state (R. 22, 23). Petitioner was 
refused admission solely because she is a Negro (R. 24), 
and this suit followed on April 6, 1946 (R. 2). Respond­
ents are the Board of Regents of the University of Okla­
homa, which has authority as to the admission of students 
to the University, George L. Cross, President of the 
University, Maurice H. Merrill, Dean of the School ot 
Law, Roy Gittinger, Dean of Admissions, and George 
Wadsack, Registrar (R. 3-4, 14). All the personal 
respondents act pursuant to orders of respondent the 
Board of Regents of the University (R. 4, 14).

The University of Oklahoma is maintained by public 
funds raised by taxation, and the School of Law specializes 
in Oklahoma law (R. 23). Indeed, unless petitioner is 
permitted to attend the School of Law, she will he placed 
“ at a distinct disadvantage”  both at the Oklahoma bar 
and in the Oklahoma public service, vis a vis those who 
have gone to the School of Law (R. 23), to which, how­
ever, only whites are admitted (R. 16-17, 23-24).

Petitioner did not apply to the Board of Regents of 
Higher Education of Oklahoma to set up a separate law 
school for Negroes, although after this action was filed



3

that Board considered whether it should open such a 
school and concluded that it had no funds so to do and 
that it had never requested or been asked to request such 
funds from the State Legislature (R. 24-25).

The District Court of Cleveland County denied the writ 
of mandamus (R. 25), on the ground that petitioner had 
not chosen the proper form of action in which to raise 
the Constitutional question (R. 21-22). The Supreme 
Court of Oklahoma affirmed (R. 51). It explicitly refused 
to pass on whether mandamus was the appropriate rem­
edy, and decided “ the merits”  of the claim that failure 
to admit petitioner to the School of Law constituted a 
discrimination “ on account of race contrary to the 14th 
Amendment to the United States Constitution”  (R. 38). 
The reasoning of the Supreme Court was that the state’s 
policy, specifically embodied in its statutes, is to segre­
gate Negroes and whites in its educational institutions, 
that this policy is valid under the language of Missouri 
ex rel. Gaines v. Canada, 305 U. S. 337, and other cases, 
and that if the State may satisfy the 14th Amendment 
by a separate law school for Negroes, it was incumbent 
upon petitioner to make known hv demand or other form 
of notice to the Board of Regents of Higher Education 
her desire for separate legal education, which she has 
failed to do (R. 38-51).

POINT I

The requirement that petitioner give notice that a 
separate law school be opened and the inevitable delay 
in opening it cast an unequal burden on petitioner.

Assuming arguendo that Oklahoma could and would, 
after appropriate demand or notice, open a law school 
which petitioner may attend, “ equal”  in the Constitu-



4

tional sense to the law school to which she has applied 
for admission, that fact would not, contrary to the posi­
tion of the Court below and of respondents, indicate 
satisfaction of the equal protection clause. It is not 
asserted that whites are subject to any burden to give 
such notice or make such demand. It is undisputed (R. 
24-25) that there are no State funds available with which 
to open without delay a separate law school. The addi­
tional burden to give notice or make demand and the 
inevitable delay in opening another school in themselves 
make plain the inequality of treatment petitioner has 
been accorded. That inequality is not to be justified by- 
reference to the so-called “ valid”  state policy of segre­
gation. Even assuming, without conceding, that separate 
facilities for Negroes may in some instances satisfy the 
demands of equal protection, we start, by reason of the 
Supremacy Clause of the Constitution, Article VI, with 
the 14th Amendment which prohibits the state from deny­
ing to any “ person”  the “ equal protection of the laws.” 
We do not start with the assumption that segregation is 
“ valid”  per se so that additional burdens, both of time 
and circumstance, may be visited on a Negro, asserted 
by the Oklahoma Supreme Court to be the first such to 
desire legal education in Oklahoma (R. 41), in order to 
enable the state to pursue its policy of segregation. The 
right given hv the equal protection clause is a personal, 
not a group, right. McCabe v. Atchison, T. S. F. By., 
235 U. S. 151, 161, 162; Mitchell v. United States, 313 
U. S. 80, 97; Missouri ex rel. Gaines v. Canada, supra, 
350, 351. The state may not, in the words of the Amend­
ment, “ deny to any person”  that right. Segregation 
does not justify discrimination, even on the assumption 
that segregation does not demonstrate discrimination.



5

Further, the discrimination is not “ excused by what is 
called its temporary character.”  Missouri ex rel. Gaines 
v. Canada , supra, 352. Petitioner was entitled to “ equal 
protection”  when she applied for admission on January 
14, 1946, to the only law school supported by the state. 
The additional burden and delay imposed upon her by 
the Court below demonstrate the lack of “ equal protec­
tion”  which she has received.

POINT II

Admission of petitioner to a separate law school 
for Negroes would not constitute equal protection.

Even if we were to assume for the sake of argument'
that a law school physically identical to that to which 
petitioner has applied were available to her, and that 
segregation in some contexts is valid, the segregation of 
petitioner in a separate school to which only Negroes 
would be admitted would, by the very nature of the 
educational process, deny to petitioner the equal protec­
tion to which she is entitled.

The agreed facts of record show that petitioner “ will 
be placed at a distinct disadvantage at the bar of Okla­
homa and in the public service of the aforesaid State with 
persons who have had the benefit of the unique prepara­
tion in Oklahoma law and procedure offered to white 
qualified applicants in the School of Law of the Univer­
sity of Oklahoma, unless she is permitted to attend the 
School of Law of the University of Oklahoma”  (R. 23). 
Petitioner can reach an equal footing at the bar of Okla­
homa and in its public service with white lawyers only 
if she attends the School of Law of the University of 
Oklahoma and participates in its “ unique”  course. Unless



G

she does so, she “ will he plaeed at a distinct disadvan­
tage.”  It follows that she will he placed at a disadvan­
tage if she is admitted, not to the school giving “ unique” 
preparation, but, to a law school which will educate only 
Negroes, perhaps only herself.

It is plain why the course given at any such separate 
school could not he equal to the “ unique”  course given at 
the Law School of the University. Even the novitiate will 
admit that education, and legal education in particular, 
is not a matter of bricks and mortar or even of books 
and paper. Instructors so successful as to give a 
“ unique”  course could hardly he duplicated. But neither 
is legal education the sole work of the professors. The 
students play a substantial role in individual self-instruc­
tion, and in the education of one another. Which lawyer 
is there whose abilities were not sharpened and enhanced 
by the varied personalities, abilities and propensities of 
his fellow students at law school! What makes a great 
law school, the hooks, the professors, or the students? 
It would he a bold Oklahoman who could say that not 
one white student in the law school of the State Univer­
sity was capable of contributing to the legal education 
of petitioner.

The Court below made much of the fact that petitioner 
is the first Negro to desire legal education within Okla­
homa (R. 41). Will a legal education in which petitioner 
will have few, if any, fellows occupying a similar educa­
tional position be as fruitful as one in which the ideas 
of the official educators will be tested, perhaps rejected, 
by varied intellects within a substantial student body? 
Further, in the absence of the point of view of the white 
one-half or more of the State’s population, those ideas 
could hardly be effectually tested and appreciated. Peti-



7

tioner is entitled to a legal education equal to that of the 
white students, who could contribute to her education 
as well as their own.

POINT III
Segregation of Negroes from whites violates the 

equal protection clause.

The 14th Amendment is one of the three Constitutional 
provisions “ having a common purpose; namely, securing 
to a race recently emancipated, * * * the enjoyment
of all the civil rights that under the law are enjoyed by 
white persons.”  Strauder v. West Virginia, 100 U. S. 
303, 306. Before the Civil War discrimination against 
Negroes had been habitual both in the community’s atti­
tude and in the official laws of the states. Indeed, most 
Negroes were slaves, and the race had long been regarded, 
officially and unofficially, as inferior and subject. The 
13th, 14th, and 15th Amendments were a reaffirmation of 
the principle that those who were equal in the sight of 
God were equal too in the sight of the Nation. And so, 
the Nation prohibited the States from proceeding upon 
an assumption of the inferiority of Negroes which the 
blood of a great war had washed away. By the equal 
protection clause the Negroes were given “ a positive 
immunity, or right, most valuable to the colored race,— 
the right to exemption from unfriendly legislation against 
them distinctively as colored,— exemption from legal dis­
criminations, implying inferiority in civil society.”  
Strauder v. West Virginia, supra, 307-308. The States 
were prohibited from taking action with respect to the 
Negroes as would be “ a brand upon them, affixed by the



8

law, an assertion of their inferiority, and a stimulant 
to that race prejudice which is an impediment to securing 
to individuals of the race that equal justice which the 
law aims to secure to all others.”  Strauder v. West Vir- 
yinia, supra, 368. (italics ours.)

What more explicit “ brand”  upon petitioner, what 
clearer “ assertion”  of her “ inferiority” , could there be 
than the segregation of her in a law school for Negroes 
only? Segregation in itself serves no rational purpose 
other than that found in the asserted inferiority of the 
Negro. That purpose the Nation would not condone.

Even the case of Plessy v. Ferguson, 163 U. S. 537, 
551, in which segregation of the races in separate rail­
road cars was upheld, recognized that the State could 
not “ stamp”  the Negroes “ with a badge of inferiority”, 
but the Court held that “ solely because the colored race 
chooses to put that construction upon it”  Negroes should 
not assume that segregation implies inferiority, for the 
dominant whites and the state which they control make no 
such assumption. There have been subsequent judicial 
expressions which have followed the Plessy case without 
examining its basic factual assumption that segregation is 
no assertion of inferiority. Gong hum v. Rice, 275 U. S. 
78, and cases cited. In each case in which segregation has 
been upheld there has been no recognition that or investi­
gation whether segregation of itself implies inferiority. 
Can Oklahoma honestly say today that the official segre­
gation of petitioner and her exclusion from the School of 
Law of the University of Oklahoma, where only whites 
may attend, is based any less on a notion of inferiority 
than would be a brand or a chain? The equal protection 
clause loosed the shackles and covered over the scars of



! )

the brands which had been inflicted upon “ any person” . 
No less does that clause shield petitioner from the brand 
of segregation.

The judgment should be reversed.

Respectfully submitted,

A merican Civil L iberties U nion, 
Amicus Curiae,

A rthur Garfield H ays,
Counsel.

Walter Gellhorn,
Osmond K. F raenkel,

Of the New York Bar,
Of Counsel.



•







IN  TH E

Supreme Court of tfje Mntteb States;
October T erm, 1947.

No. 369.

A da L ois Sipuel, Petitioner, 
v.

Board of Regents of the U niversity of Oklahoma, George 
L. Cross, M aurice II. M errill, George W adsack and 
Boy Gittinger, Respondents.

On Writ of Certiorari to the Supreme Court of the State
of Oklahoma.

MOTION OF THE NATIONAL LAW YERS GUILD FOR 
LEAVE TO FILE BRIEF AS AMICUS CURIAE.

N ational L awyers Guild,
R obert W . K enny , President. 

O. John R ogge,
A ndrew D. W einberger, 

Attorney's for 
National Lawyers Guild.

F hess or B y h o n  S. A d a m s . W a s h ih c t o k . D. C.





IN  T H E

Supreme Court of tfje Winittb States*
October T erm, 1947.

No. 369.

A da L ois Sipuel, Petitioner,

v.
Board of Regents of the U niversity of Oklahoma, George 

L. Cross, M aurice H. M errill, George W adsack and 
Roy Gittinger, Respondents.

MOTION OF THE NATIONAL LAW YERS GUILD FOR 
LEAVE TO FILE BRIEF AS AMICUS CURIAE.

The National Lawyers Guild respectfully prays leave 
to file a brief as amicus curiae in the above actioned case. 
The applicant has filed with the clerk the written consent of 
the counsel for petitioner. The applicant has in writing 
requested the consent of counsel for respondents and no 
reply has been received.

The National Lawyers Guild is an organization of mem­
bers of the American Bar, devoted particularly to the pro­
tection of the civil rights guaranteed by the Constitution 
of the United States. It believes that the basic constitu­
tional question presented in this case is of major importance 
to the nation. It believes that the judgment below and the



reasoning on which it is based seriously impairs constitu­
tional doctrines established by this Court and subverts the 
protection accorded to civil rights under the Fourteenth 
Amendment. It conceives it to be its public duty, as an 
organization of members of the bar, to bring before this 
Court the reasons which impel its conclusion that the judg­
ment below should be reversed. The National Lawyers 
Guild therefore respectfully requests leave to file a brief 
as amicus curiae.

BRIEF FOR THE NATIONAL LAW YERS GUILD AS 
AMICUS CURIAE.

STATEMENT OF THE CASE AND JURISDICTIONAL
STATEMENT.

The statement of facts and the statement of jurisdiction 
are set forth fully in petitioner’s brief and are adopted 
herein.

It is the contention of respondents that they must be 
given an opportunity to set up a segregated law school for 
the petitioner’s legal education. They raise the Okla­
homa Constitutional and statutory requirement of racial 
segregation as a complete defense to petitioner’s present 
right to admission to the University of Oklahoma Law 
School, the only state-supported facility. The petitioner’s 
brief has aptly pointed out that this defense, with the in­
herent requirement that Negroes wait long periods of time 
before securing the use of such a segregated school, is in 
itself an unequal burden. Further, petitioner’s brief has 
dealt fully with both the legal and sociological invalidity of 
the docti’ine of “ separate but equal facilities.”  This brief 
will address itself to those aspects of a legal education 
which make the doctrine of “ separate but equal”  peculiarly 
specious.



3

ARGUMENT.
I .

History has Demonstrated that there can be no Equality 
Under a Segregated System.

The respondent’s defense is bottomed on the doctrine of 
“ separate but equal”  facilities, first recognized by this 
Court in Plessey v. Ferguson1 in 1895. Yet, even in that 
case, this Court stated that the object of the Fourteenth 
Amendment “ was undoubtedly to enforce the absolute 
equality of the two races before the law.”  (163 U.S. 544). 
This basic requirement has been reiterated in many cases, 
and the assumption that equality exists underlies every 
attempt to establish the constitutionality of segregation 
statutes.

That essential fact may not be assumed today—and the 
facts establish, on the contrary, that equality under a seg­
regated system cannot be had. The very record of this case 
demonstrates that the necessary result of a segregated sys­
tem will be the denial to Negroes of educational oppor­
tunities—for here it is solely as a result of the segregated 
system that no provisions for the professional education 
of petitioner exist. That other Negroes, in the future, may 
get some modicum of the educational opportunities to 
which they are entitled does not make valid the denial of 
petitioner’s rights.

From the more general viewpoint, however, the facts 
are conclusive that no equality is possible under a segregat­
ed system. The President’s Committee on Civil Rights, con­
sidering segregation, concluded that:

“ The separate but equal doctrine stands convicted 
on three grounds. It contravenes the equalitarian 
spirit of the American heritage. It has failed to oper­
ate, for history shows that inequality of service has 
been the omnipresent consequence of separation. It 
has institutionalized segregation and kept groups 1

1163 U. S. 537.



4

apart despite indisputable evidence that normal con­
tacts among these groups tend to promote social har­
mony. ’ ’ 2

After reviewing the damaging effect of segregation upon 
educational opportunities for Negroes, the President’s 
Committee on Higher Education states:

“ The more advanced the field of endeavor, the more 
wasteful and futile become attempts to justify a double 
system. ’ ’ 3

The doctrine of “ separate but equal”  relies for its valid­
ity under our constitution upon proof of absolute equality. 
Equality being impossible under a segregated system, the 
doctrine furnishes no justification for segregation statutes.

II.

A Student Cannot be Properly Trained to Fulfill the Role of 
a Lawyer in a Democratic Society in a Segregated School.

The events of the past quarter century in our country and 
the world have emphasized the new and broader concept 
of the role of the legal profession which was described by 
Mr. Chief Justice Stone when he said:

“ Law performs its function adequately only when 
it is suited to the way of life of a people. With social 
change comes the imperative demand that law shall 
satisfy the needs which change has created, and so the 
problem, above all others, of jurisprudence in a mod­
ern world is the reconciliation of the demands, para­
doxical and to some extent conflicting, that law shall at 
once have continuity with the past and adaptability to 
the present and future. . . .  We are coming to realize 
more completely that law is not an end, but a means to 
an end—the adequate control and protection of those

2 “  To Secure These Rights, ’ ’ Report of the President’s Committee 
on Civil Rights.

3 ‘ ‘ Higher Education for American Democracy, ’ ’ Report of the 
President’s Committee on Higher Education, Vol. II, p. 32.



5

interests, social and economic, which are the special 
concern of government and hence of law. ’ ’ 4

Perhaps never before have we known so well that the 
lawyer’s is “ a public profession charged with inescapable 
social responsibilities. ” 5

Legal education today cannot be acquired by a mere drill­
ing in techniques of practice. The aim of the law school 
must be, in the words of Mr. Justice Holmes, “ not to make 
men smart, but to make them wise in their calling—to start 
them on a road which will lead them to the abode of the 
masters. ” 6 This must be true of a school which is training 
for a profession which supplies “ our social mechanics and 
many, if not most of our social inventors. ” 7 It is the fun­
damental requirement of a school which is “ training policy 
makers for the ever more complete achievement of the 
democratic values that constitute the professed ends of 
American policy. ” 8

Our basic concept in America has been from the inception, 
equality of men. It has been asserted throughout our his-

4 Stone, The Common Law in the United States, 50 Harv. L. Rev. 
4, 11.

5 Simpson, The Function of a University Law School, 49 Harv. 
L. Rev. 1068,1072. See also Stone, The Public Influence of the Bar, 
48 Harv. L. Rev. 1, “ We maj’’ well pause to consider whether the 
professional school has done well to neglect so completely the incul­
cation of some knowledge of the social responsibility which rests 
upon a public profession.”  pp.12-13.

6Holmes, “ The Use of Law Schools” in Collected Legal Pap­
ers (1920), pp. 39-40.

7 Simpson, op cit p. 1069. See also McCormick, The Place and Fu­
ture of the State University Law School, 24 N. C. L. Rev. 441, “ As 
we rebuild our curricula, it seems that more attention should be 
given to the knowledge that a lawyer needs in order to be a com­
munity leader—such matters as planning, zoning, and housing 
come to mind—and to the adaptation of the public law courses not 
only to the needs of the lawyer serving private clients, but to the 
requirements of graduates who will enter the service of the state 
and national governments. ’ ’

8Laswell and McDougal, Legal Education and Public Policy; 
Professional Training in the Public Interest, 52 Yale L. J. 206.



6

tory by our leaders. Our laws have been an unending at­
tempt to find tlie devices which will bring the ideal into 
reality. More recently, this ideal has become our pledge 
to the world in the United Nations Charter.9 For its 
achievement, the law and the lawyers must foster the real­
ization of human dignity in a commonwealth of mutual def­
erence. And it is the lawyer who must ‘ ‘ determine which ad­
justments of human relationships are in fact compatible 
with the realization of democratic ideals, which procedures 
actually aid or hamper the realization of human dignity.” 10 11 
During the long period of training which is demanded 
of the lawyer, he is to develop the skills necessary for re­
sponsible leadership. He is to acquire “ that enlargement 
and correction of perspective, that critical and inclusive 
view of reality, ’ ’ 11 upon which his clients and the public 
rely.

Among the multitude of problems which confront the 
country from time to time—the conflicts between economic 
groups, between different branches of our government, be­
tween government and business, government and trade 
unions, the states and the federal government—the treat­
ment of the Negro people in America constitutes a major 
source of inconsistency with our democratic professions 
and principles. It is a major challenge with which our 
present and future policy-makers must be constantly con­
cerned.

We submit that no law student can receive adequate 
training for the role of policy maker in a segregated school. 
Neither the petitioner in the “ jim-crow”  school nor the 
students in the “ lily-white”  University of Oklahoma Law 
School can receive “ conscious, efficient training for policy 
making12 in a democratic society. More is required than 
a knowledge of the past and a blind adherence to the status

9 United Nations Charter, Article 55.
10 Laswell and McDougal, op. cit. p. 214.
11 Ibid. p. 211
12 Ibid. p. 206.



7

quo. Such a student must be orientated not only to past 
trends but to future possibilities; such training must in­
clude experiences which will cause the student to clarify his 
moral values, to reexamine his role in society. The school 
in which the student will receive such training must in it­
self be a model of those essential ideals which the lawyer 
is to advance.

“ A duty to advance justice in human affairs is a 
more complicated duty and one far more difficult of 
achievement than is a duty to preserve human life and 
health. . . . Education in responsibility must be large­
ly indirect, and more by example than by precept. It 
■must be breathed in with the very atmosphere of the 
law school. To be effective it must pervade every as­
pect of the school’s life. ” 13

The existence of a segregated law school constitutes in 
itself an affront to American ideals. This has been recog­
nized by the President’s Committee on Civil Rights and the 
President’s Committee on Higher Education, the latter 
report clearly stating that equality in education cannot be 
achieved in a segregated system. Respect for human dig­
nity certainly means equality of access to opportunity to 
bring to fruition every capacity needed for the better func­
tioning of our democracy.

No intelligent person can contend, on the basis of myths 
about heredity of races, that a Negro student seeking train­
ing in leadership responsibilities for American life needs dif­
ferent training from a white student, and must be kept 
from contact with white students. On the basis of what we 
know about the effects of segregation on the personalities 
of the segregated, both white and colored, the greatest 
damage is done to future policy-makers who breathe in 
with the atmosphere of their education the denial of the 
equality of men.14

13 Simpson, op. cit., p. 1082.
14Frazier, Negro Youth at the Crossways (1940). “ The . . . 

pathological features of the Negro community is of a more general



8

“ However, the case of the extension of equal edu­
cation for the Negro rests only in part upon his equal 
educability. The basic social fact is that in a de­
mocracy his status as a citizen should assure him equal 
access to educational opportunity.”  15

The contention of respondent that the rights of the pe­
titioner can be met by maintaining a segregated system and 
furnishing her with a segregated legal education cannot be 
upheld in “  a nation that professes deep regard for the dig­
nity of men and that in practice relies to an extraordinary 
degree upon the advice of professional lawyers in the for­
mation and execution of policy. ” 16

A SEPARATE LAW  SCHOOL WHOSE FACILITIES 
ARE LIMITED TO NEGROES EXCLUSIVELY CAN 
NOT MEET THE REQUIREMENTS OF THE 14th 
AMENDMENT.

It is definitely established from the opinion of this Court 
in the Gaines case17 and admitted by the Supreme Court 
of Oklahoma in the opinion on appeal18 that petitioner is 
entitled to legal training within the geographical confines 
of the State of Oklahoma and of a caliber equal to that 
now offered to white persons. It is the conclusion of the 
Court below that this can be accomplished by the creation 
of a second, state-maintained school of law whose facilities 
would be available to Negroes only.

character and grows out of the fact that the Negro is kept behind 
the walls of segregation and is in an artificial situation in which 
inferior standards of excellence or efficiency are set up. Since 
the Negro is not required to compete in the larger world and to as­
sume its responsibilities, he does not have an opportunity to ma­
ture.”  p. 290.

15 “ Higher Education for American Democracy,”  Report of the 
President’s Committee on Higher Education, Vol. II, p 30-31.

10 Laswell & McDougal, op. cit., p. 291.
17 Missouri ex rel. Gaines v. Canada, 305 U. S. 337.
13 R. 42, 44.



9

It is submitted that such a project can be only an at­
tempted compliance with the equal protection clause of 
the 14th Amendment for a number of reasons. Assuming, 
from a viewpoint of physical characteristics, that the State 
of Oklahoma were to construct and maintain a second school 
of law that would compare favorably with that now in ex­
istence and available to eligible white students, one must re­
member nonetheless, that a school of law is an institution 
that is distinguished primarily by factors other than mere 
physical assets and attributes. The sum total of the intangi­
ble qualities that reflect the status of a school of law most 
clearly comprise such concepts as heritage, tradition, rep­
utation and scholastic standards, none of which can be in­
stantly acquired as of the date of a new school’s inception.

The State of Oklahoma may indeed furnish adequate 
funds to insure a well equipped library, large and comforta­
ble class rooms, and other essentials necessary to launch 
such a school, but its contribution must, of necessity, end 
at this point. Years of adherence to the highest academic 
and ethical standards must be demonstrated to the nation 
before this second school will be an accredited institution, 
recognized by national and even local bar associations, 
other universities, and institutions or agencies which ex­
tend opportunities for employment to law graduates. This 
acceptance cannot be earned in advance of the passage of 
years and to even an aspiring enrollee of this newly created 
project, there is the colorlessness that stems from the ab­
sence of a firmly rooted tradition capable of being a source 
of inspiration. Instead, the newly enrolled student is con­
fronted with a monument to the Jim Crow order, erected 
solely to remind him that he is deemed unfit to associate with 
other human beings sharing a common educational in­
terest.

Moreover, the curriculum in such a school cannot equal 
that now offered in the present State university. Obvious­
ly. In view of the smaller number of students who would 
attend such a school, the number of courses offered would 
he proportionately reduced, thereby making available to



10

petitioner and others a course of study based upon prac­
tical dictates and not upon the varying needs of the stud­
ents themselves.

As is apparent from the record (F. 31), the second school 
could not, by statutory mandate, even have a common fac­
ulty with that of the white school, with the result that emi­
nent or distinguished professors who may be or become 
associated with the present State school of law would not 
be available to petitioner and her associate for lectures or 
instruction.

It is a well known fact that one of the most important 
aspects of legal training is the oportunity for discussion, 
debate and exchange of ideas. This becomes meaningless 
unless a class or student body is composed of persons hav­
ing different and varied backgrounds and divergent views 
and attitudes toward current affairs, politics and other sub­
jects. As is to be expected, a small student body cannot 
afford this opportunity to its constitutent members to any 
substantial extent and a segregated law school will further 
decrease this by making impossible the opportunity for 
both races to secure any exchange of ideas on a subject of 
such magnitude in the south as race relations.

By the same reasoning, the smallness of the student body 
of the segregated school would weaken the efficacy of, 
or render impossible, the spirited and enthusiastic parti­
cipation in extra-curricular activities such as moot courts, 
law review and other fields of interest and the students 
would be relegated to the sole activity of class work and 
lectures.

It cannot be said that compliance with the equal pro­
tection clause of the 14th Amendment is even within the 
realm of possibility under handicaps that must inevitably 
confront a racially segregated school of law. Its gradu­
ates would have little else than a mere formal legal training 
in as varied a curriculum as its small enrollment would 
permit. Petitioner, upon her graduation, would not have 
either the prestige or the training that her white counter­
parts will receive. Apart from the further fact that no



11

such law school is even in the planning stage when she is 
now otherwise eligible, she will have imposed upon her the 
unequal burden of being required to wait until such an 
institution is equipped and ready to accept students.

It is, therefore, respectfully urged that the only equality 
that can be accorded to petitioner now, is to admit her as 
a student in the school now maintained by the State of 
Oklahoma for the study of law.

CONCLUSION.

This Court is called upon by the urgent needs of our dem­
ocratic way of life to re-examine the doctrine of “ equal 
but separate”  in the light of the facts which have developed 
since 1895 and to make its decision one which is consonant 
with the basic concepts of American democracy. The pro­
tection of the Fourteenth Amendment must, in these cri­
tical days, take on new life. One can today be guided 
by no better precept than stated by Mr. Justice Cardozo in 
“ Growth of the Law”  that we “ shall not drag in the dust 
the standards set by equity and justice to win some slight 
conformity to symmetry and order; the gain will be 
unequal to the loss. ’ ’

Respectfully submitted.

N ational Lawyers Guild,
R obert W . K enny , President.

0 . John R ogge,
A ndrew D. W einberger, 

Attorneys for 
National Lawyers Guild.







/



IN  T H E

§u^mni' Court nf tbr Unittb Stains
October Term, 1947

No. 369

ADA LOIS SIPUEL,

v.
Petitioner,

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

Respondents.

ON W E IT  OF C E E TIO E A E I TO T H E  STJPEEME CO U ET 

OF T H E  ST A T E  OF O K L A H O M A

BRIEF FOR PETITIONER

T hukgood M aeshall,
A mos T. H all,

Counsel for Petitioner.
Robert L. Caeter,
Edward R. D udley,
Marian W ynn Perry,
Frank D. Reeves,
Franklin H. W illiams,

Of Counsel.



»



TABLE OF CONTENTS

PAGE

Opinion of Court Below--------------------------------------------- 1
Jurisdiction--------------------------------------------------------------  1
Summary Statement of the Matter Involved_________  2

1. Statement of the C ase________________________  2
2: Statement of F acts___________________________  4

Assignment of Errors --------- 1_______________________  7
Question Presented_________________________________  7
Outline of Argument _______________    8

Summary of Argument _____________________________  9
Argument __________________________________________  10

I—The Supreme Court of Oklahoma Erred in Not 
Ordering the Lower Court to Issue a Writ Requir­
ing the Respondents to Admit Petitioner to the 
Only Existing Law School Maintained by the 
State __________________________________________  10

II—This Court Should Re-Examine the Constitution­
ality of the Doctrine of “ Separate But Equal”  
Facilities ____      18
A. Reference to This Doctrine in the Gaines Case 

Has Been Relied on by State Courts to Render
the Decision Meaningless________________  . „ 18

B. The Doctrine of “ Separate But Equal”  Is
Without Legal Foundation...................   27

C. Equality Under a Segregated System Is a
Legal Fiction and a Judicial Myth ___________ 36
1. The General Inequities in Public Educa­

tional Systems Where Segregation is Re­
quired _________ ^_________________ ______  ' 37



11
PAGE

2. On the Professional School Level the In­
equities Are Even More Glaring________  40

D. There is No Rational Justification For Segre­
gation in Professional Education and Dis­
crimination Is a Necessary Consequence of 
Any Separation of Professional Students On
the Basis of Color___________________________ 45

III— The Doctrine of “ Separate But Equal”  Facilities 
Should Not Be Applied to This Case----------------  51

Conclusion_________________________________________ L 52

Table of Cases

Bluford v. Canada, 32 F. Supp. 707 (1940) (appeal dis­
missed 8 Cir. 119 F. (2d) 779)-------------------------------  23

Cantwell v. Connecticut, 310 U. S. 296------------------------  51
Cummings v. Board of Education, 175 U. S. 528----------  35
Gong Lum v. Rice, 275 U. S. 78-------------------- -------------  35
Hirabayashi v. U. S., 320 U. S. 81------------------------------33,52
Marsh v. Alabama, 326 U. S. 501--------------------------------- 51
Missouri ex rel. Gaines v. Canada, 305 U. S. 337 reh.

den. 305 U. S. 676-------------------------------------- 11,18,20,21
Morgan v. Virginia, 328 U. S. 373----------------------------- 28,51
Pearson v. Murray, 169 Md. 478, 182 Atl. 590 (1936)—  19 
Plessy v. Ferguson, 163 U. S. 537------------------- -----------  31
Railway Mail Association v. Corsi, 326 U. S. 88------------ 51
Roberts v. City of Boston, 5 Cush. 198 (1849)-------------  32
State ex rel. Bluford v. Canada, 348 Mo. 298, 153 S. W.

(2d) 12 (1941)___________________________________  24
State ex rel. Gaines v. Canada, 344 Mo. 1238, 131 S. W.

(2d) 217 (1939)__________________________________  22
State ex rel. Gaines v. Canada, 342 Mo. 121, 113 S. W.

(2d) 783 (1937) ________________________________ 14>16
State ex rel. Michael v. Whitham, 179 Tenn. 250, 165 S.

W. (2d) 378 (1942)______________________________  25
Steele v. L. N. R. R. Co., 323 U. S. 192------------------------  34
Strauder v. West Virginia, 100 U. S. 303-------------------28,30



I ll

Authorities Cited

PAGE

American Teachers Association, The Black and White 
of Rejections for Military Service (Aug. 1944)__ 39,48

Biennial Surveys of Education in the United States, 
Statistics of State School Systems, 1939-40 and 
1941-42 (1944) ___________________________________ 38

Blose, David T. and Ambrose Caliver, Statistics of the 
Education of Negroes (A Decade of Progress), 
Federal Security Agency, U. S. Office of Education,
1942_____________________________________________  38

Cantril, H., Psychology of Social Movements (1941) ... 47
Clark, W. Vr., “ Los Angeles Negro Children,”  Educa­

tional Research Bidletin (Los Angeles, 1923)______ 48
Dodson, Dan W., “ Religious Prejudices in Colleges” ,

The American Mercury (July 1946).____  43
Klineberg, Otto, Race Differences (1935)............ ...... .. 48
Klineberg, Otto, Negro Intelligence and Selectice Mi­

gration (New York, 1935)________________________  48
McGovney, D. 0., “ Racial Residential Segregation by 

State Court Enforcement of Restrictive Agree­
ments, Covenants or Conditions in Deeds is Uncon­
stitutional,”  33 Cal. L. Rev. 5 (1945)____________  49

McWilliams, Carey, “ Race Discrimination and the 
Law” , Science and Society, Volume IX, No. 1, 1945 46

Myrdal, Gunnar, An American Dilemma (New York, 
1944)_________________________________ _________ 29, 46

National Survey of Higher Education for Negroes, Vol.
II, U. S. Office of Education, Washington, 1942.... . 42

Peterson, J. & Lanier, L. H., “ Studies in the Compara­
tive Ability of Whites and Negroes,”  Mental Mea­
surement Monograph, 1929_____________ _______ _ 48



IV

PAGE
Report of the President’s Committee on Civil Rights, 

“ To Secure These Rights,”  Government Printing 
Office, Washington, 1947_________________________46,51

Report of the President’s Commission on Higher Edu­
cation, “ Higher Education for American Democ­
racy” , Vol. I, Government Printing Office, Washing­
ton, 1947 _______________________________________39,50

Sixteenth Census of the United States: Population, 
Yol. m ,  Part 4 (1940)___________________________ 40

Thompson, Charles H., “ Some Critical Aspects of the 
Problem of the Higher and Professional Education 
for Negroes,”  Journal of Negro Education (Fall, 
1945)_________________________ ___________________  40

Warner, Lloyd W., New Haven Negroes (New Haven, 
1940)____________________________________________  49

Weltfish, Gene, “ Causes of Group Antagonism” , Vol. I, 
Journal of Social Issues__________________________ 47

Statutes Cited

Missouri
Revised Statutes 1929, Section 9618____ 15,16, 21, 23,24

Oklahoma
Constitution, Article XIII-A, Section 2___________15,16
Statutes, Sec. 1451B_____________________________ 15,16

Tennessee
Chapter 43, Public Acts of 1941_______ ___________ 25



IN THE

Supreme d m trt of th? Itm ti'i) Btattz
October Term, 1947

No. 369

A da Lois S ipuel,
Petitioner,

v.

Board of Eegents of the U niversity of 
Oklahoma, George L. Cross, Maurice 
H. Merrill, George W adsack and Roy 
Gittinger,

Respondents.

ON W R IT  OF C E R TIO R A R I TO T H E  S U P R E M E  CO U RT OF T H E  

STA TE  OF O K L A H O M A

BRIEF FOR PETITIONER

Opinion of Court Below

The opinion of the Supreme Court of Oklahoma appears 
in the record filed in this cause (R. 35-51) and is reported 
at___ Okla______, 180 P. (2d) 135.

Jurisdiction

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



2

The Supreme Court of Oklahoma issued its judgment in 
this case on April 29, 1947 (R. 51). Petition for rehearing 
was appropriately filed and was denied on June 24, 1947 
(R. 61). Petition for Certiorari was filed on September 20, 
1947, and was granted by this Court on November 10, 1947.

SUMMARY STATEMENT OF THE MATTER INVOLVED

1. Statement of the Case

Petitioner is a citizen and resident of the State of Okla­
homa. She desires to study law and to prepare herself for 
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 institution maintained 
and supported out of public funds and the only public insti­
tution in the state offering facilities for a legal education. 
She was denied admission. Her qualifications for admission 
to this institution are undenied, and it is admitted that peti­
tioner, except for the fact that she is a Negro, would have 
been accepted as a first-year student in the School of Law 
of the University of Oklahoma, which is the only state insti­
tution offering instruction in law.

Upon being refused admission solely on account of her 
race and color, petitioner applied to the District Court of 
Cleveland County, Oklahoma, for a writ of mandamus 
against the Board of Regents of the University of Okla­
homa; George L. Cross, President; Maurice H. Merrill, 
Dean of the Law School; Roy Gittinger, Dean of Admis­
sions; and George Wadsack, Registrar, to compel her ad­
mission to the first-year class of the School of Law on the 
same terms and conditions afforded white applicants seek­
ing to matriculate therein (R. 2). The writ was denied



3

(R. 21) and on appeal this judgment was affirmed by the 
Supreme Court of the State of Oklahoma on April 29, 1947 
(R. 51)- Petitioner duly entered a motion for a rehearing 
(R. 54) which was denied on June 24, 1947 (R. 61), where­
upon petitioner now seeks in this Court a review and re­
versal of the judgment below.

The action of respondents in refusing to admit peti­
tioner to the School of Law was predicated upon the 
grounds that: (1 ) such admission was contrary to the con­
stitution, law and public policy of the state; (2 ) that 
scholarship aid was offered by the state to Negroes to study 
law outside of the state; and, (3) that no demand had been 
made upon the Board of Regents of Higher Education to 
provide such legal training at Langston University, the 
state institution affording college and agricultural training 
to Negroes in the state.

The Supreme Court of Oklahoma held that:

“ We conclude that petitioner is fully entitled to 
education in law with facilities equal to those for 
white students, but that the separate education policy 
of Oklahoma is lawful and is not intended to be dis­
criminatory in fact, and is not discriminatory against 
plaintiff in law for the reasons above shown.

“ We conclude further that as the laws in Okla­
homa now stand this petitioner had rights in addi­
tion to those available to white students in that she 
had the right to go out of the state to the school of 
her choice with tuition aid from the state, or if she 
preferred she might attend a separate law school for 
Negroes in Oklahoma.

“ We conclude further that while petitioner may 
exercise here preference between those two educa­



4

tional plans, she must indicate that preference by 
demand or in some manner that may be depended 
upon, and we conclude that such requirement for no­
tice or demand on her part is no undue burden upon 
her.

“ We conclude that up to this time petitioner has 
shown no right whatever to enter the Oklahoma Uni­
versity Law School, and that such right does not exist 
for the reasons heretofore stated”  (R. 51).

In this Court petitioner reasserts her claim that the re­
fusal to admit her to the University of Oklahoma solely be­
cause of race and color amounts to a denial of the equal 
pretection 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 fa­
cilities to Negroes.

2. Statement of 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 in the University of Oklahoma is the 
only law school in the state maintained by the state and



5

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 appro­
priations from public funds raised by taxation from the citi­
zens and taxpayers of the State of Oklahoma (R. 22-23).

The School of Law of the University of Oklahoma spe­
cializes in law and procedure which regulate the govern­
ment 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 pro­
cedure. 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 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 aforesaid 
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 re­
quired 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



6

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
sions, and Registrar of the University (all respondents 
herein) and was found to be an official transcript entitling 
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 constitutional and statutory provisions re­
ferred to in the answer of respondents herein, petitioner 
was denied admission to the School of Law of the Uni­
versity 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 Law 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 regula­
tions of the said university (R. 24).

Petitioner had 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 Uni­
versity 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 Edu­
cation: (1 ) had notice that this case was pending; and, (2) 
met and considered the questions involved herein; and, (3) 
had no unallocated 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 allocations for such a purpose (R. 24-25).



7

Assignment of Errors

The Supreme Court of Oklahoma erred:

(1) In holding that the separate education policy of Okla­
homa is lawful and is not intended to be discriminatory 
in fact, and is not discriminatory against plaintiff in 
law for the reasons above shown.

(2) In holding that as the laws in Oklahoma now stand this 
petitioner had rights in addition to those available to 
white students in that she had the right to go out of 
the state to the school of her choice with tuition aid 
from the state, or if she preferred she might attend a 
separate law school for Negroes in Oklahoma.

(3) In holding that while petitioner may exercise her 
preference between those two educational plans, she 
must indicate that preference by demand or in some 
manner that may be depended upon, and that such re­
quirement for notice or demand on her part is no undue 
burden upon her.

(4) In holding that petitioner has shown no right whatever 
to enter the Oklahoma University Law School, and that 
such right does not exist for the reasons heretofore 
stated.

(5) In affirming the judgment of the trial court.

Question Presented

The Petition for Certiorari in the instant case presented
the following question:

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?

i



8

OUTLINE OF ARGUMENT

I

The Supreme Court of Oklahoma erred in not ordering 
the lower court to issue a writ requiring the respon­
dents to admit petitioner to the only existing law 
school maintained by the state.

II

This Court should re-examine the constitutionality of 
the doctrine of “ separate but equal” facilities.

A. Reference to this doctrine in the Gaines case has 
been relied on by state courts to render the decision 
meaningless.

B. The doctrine of “separate but equal” facilities is 
without legal foundation.

C. Equality under a segregated system is a legal fiction 
and a judicial myth.

1. The general inequities in public educational sys­
tems where segregation is required.

2. On the professional school level the inequities are 
even more glaring.

D. There is no rational justification for segregation in 
professional education and discrimination is a neces­
sary consequence of any separation of professional 
students on the basis of color.

III

The doctrine of “ separate but equal” facilities should 
not be applied to this case.



9

Summary of Argument

Petitioner here is asserting a constitutional right to a 
legal education on par with other persons in Oklahoma. 
This right can be protected only by petitioner’s admission 
to the law school of the University of Oklahoma, the only 
existing facility maintained by the state. Petitioner, there­
fore, sought a mandatory writ requiring her admission to 
the University of Oklahoma. The state courts have refused 
to grant the relief sought principally because of statutes 
requiring the separation of the races in the state’s school 
system. Petitioner contends that the questions presented 
in this appeal were settled by this Court in Missouri ex rel. 
Gaines v. Canada and that her case both as to facts and law 
comes within the framework of the Gaines case.

Petitioner, however, is forced to raise anew the issue 
considered settled by that decision chiefly because the opin­
ion in the Gaines case was amenable to an interpretation 
that this Court admitted the right of a state to maintain 
a segregated school system under the equal but separate 
theory even where, as here, no provision other than the 
existing facility which is closed to Negroes is available to 
petitioner. Eeference to this doctrine has not only be­
clouded the real issues in cases of this sort but in fact has 
served to nullify petitioner’s admitted rights.

Petitioner is entitled to admission now to the University 
of Oklahoma and her right to redress cannot be conditioned 
upon any prior demand that the state set up a separate 
facility. The opinion in Gaines case is without meaning 
unless this Court intended that decision to enforce the right 
of a qualified Negro applicant in a case such as here to 
admission instanter to the only existing state facility. The



1 0

equal but separate doctrine has no application in cases of 
this type. The Gaines decision must have meant at least 
this and should be so clarified. Beyond that petitioner con­
tends that the separate but equal doctrine is basicly unsound 
and unrealistic and in the light of the history of its applica­
tion should now be repudiated.

ARGUM ENT

I

The Supreme Court of Oklahoma Erred in Not Order­
ing the Lower Court to Issue a W rit Requiring the 
Respondents to Admit Petitioner to the Only Exist­
ing Law School Maintained by the State.

Petitioner’s constitutional right to a legal education 
arose at the time she made application, as a qualified citizen, 
for admission into the state law school. This privilege ex­
tends to all qualified citizens of Oklahoma and the denial 
thereof to this petitioner constitutes a violation of the Four­
teenth Amendment to the United States Constitution. That 
the action of respondents, constituting the Board of Regents 
of the University of Oklahoma, must be regarded as state 
action has conclusively been established in a long line of 
decisions by this Court, and is not in issue in this case.

It is admitted that: (1) petitioner was qualified to enter 
the law school at the time application was made; that she 
was qualified at the time this case was tried and is now 
qualified; (2) the law school at the University of Oklahoma 
is the only existing facility maintained by the state for the 
instruction of law; (3) petitioner has been denied admission 
to the University law school solely because of race and color; 
(4) respondents herein are state officials. There is no ques­
tion but that if petitioner were not a Negro she would have 
been admitted to the University of Oklahoma Law School.



11

That petitioner had a clear right under these facts to 
have the writ issued requiring these respondents to admit 
her into the State law school was expressly established by 
this Court in Missouri ex rel. Gaines v. Canada.1

The Supreme Court of Oklahoma in affirming the lower 
court’s denial of the writ relied upon (1 ) the segregation 
laws of the state requiring separate educational facilities 
for white and Negro citizens; and, (2) that as a result of 
these segregation statutes a duty was placed upon the peti­
tioner to make a “ demand”  for the establishment of a sepa­
rate law school at some time in the future before applying 
to the University Law School. This new duty as a con­
dition precedent to the exercise of her right to a legal edu­
cation is placed upon petitioner solely because of the segre­
gation statutes of Oklahoma.

The writ was not issued and petitioner has not been ad­
mitted to the only existing law school because the Supreme 
Court of Oklahoma committed error in not following the 
Gaines case, but adopting just the opposite point of view 
which has deprived petitioner of her constitutional right not 
to be discriminated against because of race and color. Under 
the facts in this case the writ should have been issued.

In the Gaines case, petitioner (1) was qualified to seek 
admission into the state law school in Missouri; (2) the 
law school at Missouri was the only law school maintained 
by the State for the instruction of law; (3) Caines was de­
nied admission to the law school solely on account of race 
and color; and, (4) respondents in the Gaines case were 
state officers. There, this Court held that, despite the find­
ing of the Supreme Court of Missouri that a policy of segre­
gation in education existed in the State, a provision for 
out-of-state aid for Negro students did not satisfy the Four­

1 305 U. S. 337 (rehearing denied 305 U. S. 676).



1 2

teenth Amendment and Gaines was declared entitled to be 
admitted into the state law school “ in the absence of other 
and proper provisions for his legal training within the 
state.”  This Court recognized the fact that no prior de­
mand had been made upon the Curators of Lincoln Uni­
versity to set up a separate law school for Negroes.2

The Oklahoma Supreme Court erroneously relies upon 
the Gaines case for the proposition that “ the authority of a 
State to maintain separate schools seems to be universally 
recognized by legal authorities”  (R. 39). Mr. Chief Justice 
H ughes adequately answered this argument as follows:

‘ ‘ The admissibility of laws separating races in the 
enjoyment of privileges afforded by the state rests 
wholly upon the quality of privileges which the laws 
give to separated groups within the state. ” 3

The Oklahoma Supreme Court held that the segregation 
laws of the State prevent petitioner from entering the only 
state law school:

“ It seems clear to us that since our State policy 
of separate education is lawful, the petitioner may 
not enter the University Law School maintained for 
white pupils”  (R. 44).

The court concluded that this separation policy is not dis­
criminatory against petitioner (R. 51). The reasons ad­
vanced for this conclusion have been adequately met in the 
Gaines case and disposed of favorably to petitioner herein.

In seeking to justify the policy of segregation, which 
provides no law training for Negroes within the State, the 
Oklahoma Supreme Court also relies upon out-of-state

2 305 U. S. 337, 352.
3 Ibid., at p. 349.



13

scholarship aid—a point completely dehors the record in 
this case. The court stated:

“ If a white student desires education in law at an 
older law school outside the State, he must fully pay 
his own way while a Negro student from Oklahoma 
might be attending the same or another law school 
outside the State, but at the expense of this State.

“ It is a matter of common knowledge that many 
white students in Oklahoma prefer to and do receive 
their law training outside the State at their own ex­
pense in preference to attending the University law 
school. Perhaps some among those now attending the 
University Law School would have a like preference 
for an older though out-of-state school but for the 
extra cost to them.

“ Upon consideration of all facts and circum­
stances it might well' be, at least in some cases, that 
the Negro pupil who receives education outside the 
state at state expense is favored over his neighbor 
white pupil rather than discriminated against in that 
particular”  (R. 43).

On this point the Gaines case is clear:

“ We think that these matters are beside the point. 
The basic consideration is not as to what sort of 
opportunities other states provide, or whether they 
are as good as those in Missouri, but as to what 
opportunities Missouri itself furnishes to white stud­
ents and denies to Negroes solely upon the ground of 
color. ” 4

Under the facts in this case such a policy applied to peti­
tioner is unconstitutional and the suggested substitutes of 
requiring her to elect either out-of-state aid, or demand that 
a new institution be erected for her, are inadequate to meet 
the requirements of equal protection of the law. This addi­
tional duty of requiring petitioner to make a demand upon

4 305 U. S. 337, 349.



14

the Board of Higher Education of Oklahoma to establish a 
separate law school before being able to successfully assert 
a denial by the state of her right to a legal education comes 
by virtue of the segregation statutes of Oklahoma. Clearly 
this duty devolves only upon Negroes and not upon white 
persons and is in itself discriminatory.

There is a striking similarity between the decisions of 
the state courts in the Gaines case and this case on the 
question of the petitioner’s alleged duty to make a “ de­
mand”  for a separate law school as a condition precedent 
to application to the existing law school.

In the Gaines case, the Supreme Court of Missouri 
stated: “ Appellant made no attempt to avail himself of 
the opportunities afforded the Negro people of the State 
for higher education. He at no time applied to the manage­
ment of the Lincoln University for legal training. ” 5

In the decision of the Oklahoma Supreme Court in this 
case, the court stated:

“ Here petitioner Sipuel apparently made no ef­
fort to seek in law in a separate school”  (R. 47).

A  further similarity exists in the statutes of the two 
states, neither of which could reasonably be interpreted to 
place a mandatory duty upon the governing body to supply 
facilities for a legal education to Negro students within the 
state although the Supreme Court of Oklahoma declared 
that had petitioner applied for such legal education, “ it 
would have been their duty to provide for her an oppor­

5 113 S. W . 2d 783, 789 (1937). In the face of this dear statement 
of the facts by the Missouri Court in the Games case, the Oklahoma 
court stated that the facts were completely contrary: “ Thus, in Mis­
souri, there was application for and denial of that which could have 
been lawfully furnished, that is, law education in a separate school 
. . . ” (R. 45).



15

tunity for education in law at Langston or elsewhere in 
Oklahoma”  (R. 45). In the Gaines case, the statute (Sec­
tion 9618, Missouri Revised Statute 1929) provides that the 
Board of Curators of Lincoln University were required so 
to reorganize that institution as to afford for Negroes 
“ training up to the standard furnished by the state uni­
versity of Missouri whenever necessary and practicable in 
their opinion.”  This Court interpreted that statute as 
not placing a mandatory duty upon the Missouri officials.

In Oklahoma, the 1945 amendments provided, in Section 
1451 B, that the Board of Regents of Oklahoma Agricul­
tural and Mechanical College should control Langston Uni­
versity and should “ do any and all things necessary to make 
the university effective as an educational institution for 
Negroes of the State.”

In addition, the Oklahoma Constitution, Article XIII-A, 
section 2, provides in part:

“ 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 function and courses of study in each 
of the institutions to conform to the standards pre­
scribed; . . . ”

These vague provisions, lacking even the comparison 
with the standards of the “ white”  university which were 
present in the Missouri statute, were construed by the state 
court as placing a mandatory duty upon the Board of 
Regents to provide education in law for petitioner within 
the State of Oklahoma. Such a duty was not found by the



16

court to come directly from the statute but to flow from 
the requirement of the segregation policy of the state itself.

The Supreme Court of Oklahoma in construing its stat­
utes concerning higher education held that these statutes 
placed a mandatory duty upon the State Regents for Higher 
Education to establish a Negro law school upon demand:

“ When we realize that and consider the pro­
visions of our State Constitution 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 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 pro­
vide a separate laiv school for Negroes upon demand 
or substantial notice as to patronage therefor.” 
(Italics ours—R. 50.)

The Supreme Court of Missouri in construing its stat­
utes as to higher education for Negroes concluded that:

“ In Missouri the situation is exactly opposite (to 
Maryland). Section 9618 R. S. 1929 authorizes and 
requires the board of curators of Lincoln University 
‘ 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 prac­
ticable in their opinion.’ This statute makes it the 
mandatory duty of the board of curators to estab­
lish a law school in Lincoln University whenever nec­
essary or practical.”  (Italics ours— 113 S. W. 2d 
783, 791.)

This Court in passing upon the construction of the Supreme 
Court of Missouri of its statutes stated:

“ The state court quoted the language of Section 
9618, Mo. Rev. Stat. 1929, set forth in the margin,



17

making it the mandatory duty of the board of cura­
tors to establish a law school in Lincoln University 
‘whenever necessary and practicable in their opin­
ion.’ This qualification of their duty, explicitly 
stated in the statute, manifestly leaves it to the judg­
ment of the curators to decide when it will be neces­
sary and practicable to establish a law school, and 
the state court so construed the statute”  (305 U. S. 
337, 346-347).

Further evidence that the Supreme Court of Oklahoma 
completely ignored the opinion of this Court in the Gaines 
case appears from the misstatement of fact that Gaines 
actually applied for admission to a separate Negro school 
in Missouri where there was no law school in existence. On 
this point the Oklahoma Supreme Court stated:

“ The opinion does not disclose the exact nature 
of his (Gaines) communication or application to 
Lincoln University, but since Gaines was following 
through on his application for and his efforts to ob­
tain law school instruction in Missouri, we assume 
he applied to Lincoln University for instruction 
there in the law.''’ (Italics ours—R. 44.)

“ This he did when he made application to Lin­
coln University as above observed, but this petitioner 
Sipuel wholly failed to do”  (R. 46).

“ Apparently petitioner Gaines in Missouri was 
seeking first that to which he was entitled under the 
laws of Missouri, that is education in law in a sepa­
rate school”  (R. 47).

The actual facts, as this Court indicated in its opinion in 
the Gaines case, are that Gaines only applied to the Uni­
versity Law School maintained by the State. The record 
in the Gaines case clarifies this point:

“ Q. Now you never at any time made an applica­
tion to Lincoln University or its curators or its otfi-



18

cers 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 ap­
plication for any of those rights, did you? A. No 
sir. ” 6

Mr. Chief Justice H ughes in the Gaines opinion quite cor­
rectly states the facts :

“ In the instant case, the state court did note that 
petitioner had not applied to the management of 
Lincoln University for legal training.”  7

The Supreme Court of Oklahoma has shown no valid 
distinction between this case and the Gaines case. Their 
efforts to distinguish the two cases are shallow and without 
merit. In refusing to grant the relief prayed for in this 
case the State of Oklahoma has demonstrated the inevitable 
result of the enforcement of the doctrine of “ separate but 
equal”  facilities, viz, to enforce the policy of segregation 
without any pretext of giving equality.

II

This Court Should Re-Examine the Constitutionality of
the Doctrine of “ Separate But Equal” Facilities.

A. Reference to This Doctrine in the Gaines Case Has 
Been Relied on by State Courts to Render the Deci­
sion Meaningless.

Petitioner herein is seeking a legal education on the 
same basis as other students possessing the same qualifi­

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

7 Missouri ex rel. Gaines v. Canada, 305 U. S. 337, 352.



19

cations. The State of Oklahoma in offering a legal educa­
tion to qualified applicants is prohibited by the Fourteenth 
Amendment from denying these facilities to petitioner 
solely because of her race or color. Although the Four­
teenth Amendment is a prohibition against the denial to 
petitioner of this right, it is at the same time an affirmative 
protection of her right to be treated as all other similarly 
qualified applicants without regard to her race or color.

Respondents rely upon Oklahoma’s segregation statutes 
as grounds for the denial of petitioner’s rights. In order 
to bolster their defense, they seek to place upon petitioner 
the duty of taking steps to have established a separate law 
school at an indefinite time and at an unspecified place 
without any guarantee whatsoever as to equality in either 
the quantity or quality of these theoretical facilities.

The “ separate but equal”  doctrine, based upon the as­
sumption that equality is possible within a segregated sys­
tem, has been used as the basis for the enforcement of the 
policy of segregation in public schools. The full extent of 
the evil inherent in this premise is present in this case 
where the “ separate but equal”  doctrine is urged as a com­
plete defense where the state has not even made the pretense 
of establishing a separate law school.

In the first reported case on the right of a qualified 
Negro applicant to be admitted to the only existing law 
school maintained by the state, the Court of Appeals of 
Maryland, in the face of a state policy of segregation, de­
cided that the Fourteenth Amendment entitled the Negro 
applicant to admission to the only facility maintained:

“ Compliance with the Constitution cannot be de­
ferred at the will of the state. Whatever system it 
adopts for legal education now must furnish equality 
of treatment now. ” 8

8 Pearson v. Murray, 169 Md. 478, 182 A. 590 (1936).



2 0

The second case involving this point reached this Court 
on a petition for a writ of certiorari to the Supreme Court 
of Missouri.9 The facts in the Gaines case were similar to 
those in the Pearson case except that there was no statu­
tory authorization for the establishment of a separate law 
school for Negroes in Maryland, whereas the State of Mis­
souri contended that there was statutory authorization for 
the establishment of a separate law school with a provision 
for out-of-state scholarships during the interim.

This Court, in reversing the decision of the Supreme 
Court of Missouri (which affirmed the lower court’s judg­
ment refusing to issue the writ of mandamus), held that 
the offering of out-of-state scholarships pending possible 
establishment of a Negro law school in the future within 
the state, did not constitute equal educational opportunities 
within the meaning of the Fourteenth Amendment. Mr. 
Chief Justice H ughes, in the majority opinion held: “ that 
petitioner was entitled to be admitted to the law school of 
the State University in the absence of other and proper 
provision for his legal training within the State.” 9® This 
issue, as framed by the Court, made unnecessary to its 
decision any holding as to what the decision might be if 
the state had been offering petitioner opportunity for a 
legal education in a Negro law school then in existence in 
the state.

At the time of its rendition, the Gaines decision was 
considered a complete vindication of the right of Negroes to 
admission to the only existing facility afforded by the state, 
even in the face of a state policy and practice of segrega­
tion. This decision, in fact, was considered as being at 
least as broad and as far reaching as Pearson v. Murray,

9 Missouri ex rel. Gaines v. Canada, 305 U. S. 337. 
9a 305 U. S. 337, 352.



2 1

supra. This apparently was the intent and understanding 
of the Court itself, for Mr. Justice M cR eynolds, in a sepa­
rate opinion, construed the opinion as meaning that either 
the state could discontinue affording legal training to whites 
at the University of Missouri, or it must admit petitioner 
to the only existing law school.

The Court’s reference to the validity of segregation 10 
laws and its discussion of whether or not there was a man­
datory duty upon the Board of the Negro College in Mis­
souri to establish the facilities demanded in a separate 
school, however, has created unfortunate results. Because of 
this language, courts in subsequent cases, while purporting 
to follow the Gaines decision, have in reality so interpreted 
this decision as to withhold the protection which that case 
intended.

When the Gaines case was remanded to the state court 
after decision here, the Missouri Supreme Court, in quot­
ing from this Court’s opinion, placed great reliance upon 
that portion of the opinion which said:

“ We are of the opinion that the ruling was error, 
and that petitioner was entitled to be admitted to the 
law school of the State University in the absence of 
other and proper provision for his legal training 
within the State.”

By then, Section 9618 of the Missouri Statutes Annotated 
had been repealed and reenacted and was construed as 
placing a mandatory duty upon the Board of Curators of 
the Lincoln University (the Negro college) to establish a 
law school for Negroes. The court concluded that the issu­

10 “The State has sought to fulfill that obligation by furnishing equal 
facilities in separate schools, a method the validity of which has been 
sustained by our decisions.”  Missouri ex rel. Gaines v. Canada, 305 
U. S. 337, 344.



22

ance of the writ would be denied if, by the time the case was 
again tried, the facilities at Lincoln University were equiva­
lent to those of the University of Missouri and gave the 
state until the following September to establish such facili­
ties. If they were not equivalent, the writ would be granted. 
Said the court:

“ We are unwilling to undertake to determine con­
stitutional adequacy of the provision now made for 
relator’s legal education within the borders of the 
state by the expedient of coupling judicial notice with 
a presumption of law . . . ”  (131 S. W. 2d 217,
219-220.)

Hence, the Missouri Supreme Court in the second Gaines 
case construed the opinion of this Court as not requiring 
the admission of the petitioner to the existing law school 
but as giving to the State of Missouri at that late date the 
alternative of setting up a separate law school in the future. 
In the event the state exercised that option, petitioner would 
have the right to come into court and test the equality of 
the provisions provided for him as compared with those 
available at the University of Missouri. If no facilities 
were available or those available were unequal, he would 
then be entitled to admission to the University of Missouri 
law school.

Petitioner filed his application for writ of mandamus 
in the Gaines case in 1936. The case reached this Court in 
1938. It was then returned to the Supreme Court of Mis­
souri, and a decision rendered in August 1939. Thereafter, 
the state was given an additional several months to set up 
a law school. Then, petitioner would be entitled to come in 
again and test the equality of the provisions. Presumably, 
therefore, by 1941, four years after he asserted his right 
to admission to the Law School of the University of Mis­



2 3

souri, petitioner might get some redress. During this 
period of time, white students in the class to which he be­
longed would have graduated from law school and would 
have been a year or perhaps more in the actual practice of 
law.

Shortly after the Gaines case, another suit was started 
by a Negro based upon the refusal of the registrar of the 
University of Missouri to admit her to the School of 
Journalism, it being the only existing facility within the 
state offering a course in journalism. Suit was brought 
in the U. S. District Court seeking damages and was dis­
missed. The District Court adopted the construction of 
Section 9618 of Missouri Statutes Annotated, which the 
State Supreme Court had followed in the second Gaines 
decision, and it found that the statute placed a mandatory 
duty on the Board of Curators of Lincoln University to 
set up a School of Journalism for Negroes upon proper 
demand.

In answering plaintiff’s contention that the rights she 
asserted had been upheld by this Court in the Gaines case, 
the District Court said:

“  . . . While this court is not bound by the State 
court’s construction of the opinion of the Supreme 
Court, much respect is due the former court’s opinion 
that the Gaines case did not deprive the State of 
a reasonable opportunity to provide facilities, de­
manded for the first time, befoi’e it abrogated its 
established policy of segregation. ’ ’ 11

And in dismissing the case, it stated the following as what 
it felt her rights to be under the holding of this Court in the 
Gaines case:

“ Since the State has made provision for equal 
educational facilities for Negroes and has placed the 11

11 Blujord v. Canada, 32 F. Supp. 707, 710 (1940).



24

mandatory duty upon designated authorities to pro­
vide those facilities, plaintiff may not complain that 
defendant has deprived her of her constitutional 
rights until she has applied to the proper authorities 
for those rights and has been unlawfully refused. 
She may not anticipate such refusal.” 12

Thus, the District Court construed the Gaines case as 
requiring a petitioner to apply to the board of the Negro 
college where a statutory duty was placed upon them to 
provide the training desired and await their refusal before 
he could assert any denial of equal protection, even in the 
face of the patent fact that there was only one facility in 
existence at the time of application which was maintained 
exclusively for whites.

The next case was State ex rel. Bluford v. Canada, 153
S. W. (2d) 12 (1941). Petitioner in this case sought by 
writ of mandamus to compel her admission to the School of 
Journalism at the University of Missouri. The court de­
nied the writ on the ground that the state could properly 
maintain a policy of segregation and that its right to so do 
had this Court’s approval. Section 9618 of the Missouri 
Statutes Annotated was again construed as placing upon 
the Board of Curators of Lincoln University a mandatory 
duty to establish facilities at Lincoln University equal to 
those at the University of Missouri. The court held that 
although no School of Journalism was available there, the 
board was under a duty to open new departments on de­
mand and was entitled to a reasonable time after demand 
to establish the facility. Only after a demand of the board 
of the Negro college and a refusal within a reasonable-lime, 
or an assertion by the board that it was unable to establish 
tEe facility “demanded, would admission of a Ne^u-o to-the
existing facility be granted. This decision construed the 

12 32 Fed. Supp. 707, 711.



25

Gaines case as meaning that a Negro must not only first 
make a demand upon the board of the Negro school, but 
that there must either be an outright refusal or failure to 
establish the facilities within a reasonable time before a 
petitioner could successfully obtain redress to which he was 
entitled under the Gaines decision.

In 1942, in the case of State ex rel. Michael v. Whitham 
(iTkTS. W. (2d) 378), six Negroes sought by writ of man­
damus admission to the graduate and professional schools 
of the University of Tennessee. The cases were consolidated, 
and while pending, the state passed a statute on February 
13,1941, Chapter 43 of the Public Acts of 1941, which stated 
in part as follows:

“ Be it enacted by the General Assembly of the 
State of Tennessee, That the State Board of Edu­
cation and the Commissioner of Education are hereby 
authorized and directed to provide educational train­
ing and instruction for Negro citizens of Tennessee 
equivalent to that provided at the University of Ten­
nessee for white citizens of Tennessee.”

The court held that the Board of Education was under 
a mandatory duty to establish graduate facilities and pro­
fessional training for Negroes equivalent to that at the 
University of Tennessee upon demand and a reasonable ad­
vance notice. The statute, the court held, provided a com­
plete and full method by which Negroes may obtain edu­
cational training and instruction equivalent to that at the 
University of Tennessee.

As the Gaines case was there construed, a Negro seeking 
professional or graduate training offered whites at the State 
University must: (1) first make a demand for training in a 
separate school of the Board charged with the duty of pro­
viding equal facilities for Negroes; and, (2) give that Board



2 6

a reasonable time thereafter to set up the separate facility 
before a petitioner could successfully bring himself within 
the holding of the Gaines case. Even the mere statutory 
declaration of intent adopted while the case was pending, 
although unfulfilled, was found by the Tennessee Supreme 
Court to be an adequate answer to petitioner’s assertion of 
a denial of equal protection. And this even though this 
Court had clearly and conclusively disposed of that con­
tention in the Gaines case.

Finally, the State of Oklahoma, relying upon these latter 
decisions, refused to admit petitioner to the law school of 
the University of Oklahoma on the grounds that the segre­
gation statutes o f  Oklahoma are a complete bar to peti­
tioner’s claimed right to attend the only law school main­
tained by the state and that she must, therefore, make a 
demand on certain officials to establish a separate lawT school 
for her.

The Supreme Court of Oklahoma, therefore, construed 
the decision in the Gaines case as follows: “ The reasoning 
and spirit of that decision of course is applicable here, that 
is, that the state must provide either a proper legal training 
for petitioner in the state, or admit petitioner to the Uni­
versity Law School. But the very existence of the option 
to do the one or the other imports the right or an oppor­
tunity to choose the one of the two courses which will follow 
the fixed policy of the state as to separate schools, and 
before the courts should foreclose the option the oppor­
tunity to exercise it should be accorded”  (R. 47).

At the very least the Gaines case means, we submit, that 
a state cannot bar a qualified Negro from the only existing 
facility in spite of its policy of segregation. Moreover, the 
burden of decision as to whether the segregated system will 
be maintained is upon the state and not upon an aggrieved



2 7

Negro who seeks the protection of the federal constitution. 
As a party whose individual constitutional rights have been 
infringed, petitioner is entitled to admission to the law 
school of the University of Oklahoma now. Any burden 
placed upon her which is not required of other law school 
applicants is a denial of equal protection. Her rights cannot 
be defeated nor her assertion thereof be burdened by re­
quiring that she demand a state body to provide her with 
a legal education at some future time. The state is charged 
with the responsibility of giving her equal protection at 
the time she is entitled to it. The shams and legalism which 
have been raised to bar her right to redress must not be 
allowed to stand in the way.

The basic weakness of the Gaines decision was that while 
recognizing that petitioner’s only relief and redress was 
admission to the existing facility, the opinion created the 
impression that this Court would give its sanction even in 
cases of this type, to a state’s reliance upon the ‘ ‘ equal but 
separate”  doctrine. This Court, therefore, must reexamine 
the basis for its statement asserting the validity of racial 
separation which statement has been used to deny to peti­
tioner the protection of the constitutional right to which 
she is entitled.

B. The Doctrine of “Separate But Equal” Is Without 
Legal Foundation.

Classifications and distinctions based on race or color 
have no moral or legal validity in our society. They are 
contrary to our constitution and laws, and this Court has 
struck down statutes, ordinances or official policies seeking 
to establish such classifications. In the decisions concerning 
intrastate transportation and public education, however, 
this Court appears to have adopted a different and anti­



2 8

thetical constitutional doctrine under which racial separa­
tion is deemed permissible when equality is afforded. An 
examination of these decisions will reveal that the “ separate 
but equal”  doctrine is at best a bare constitutional hypothe­
sis postulated in the absence of facts showing the circum­
stances and consequences of racial segregation and based 
upon a fallacious evaluation of the purpose and meaning 
inherent in any policy or theory of enforced racial sepa­
ration.

Many states have required segregation of Negroes from 
all other citizens in public schools and on public convey­
ances. The constitutionality of these provisions has seldom 
been seriously challenged. No presumption of constitu­
tionality should be predicated on this non-action. A similar 
situation existed for many years in the field of interstate 
travel where state statutes requiring segregation in inter­
state transportation were considered to be valid and en­
forced in several states for generations and until this Court 
in 1946 held that such statutes were unconstitutional when 
applied to interstate passengers.13

The Thirteenth, Fourteenth and Fifteenth Amendments 
were adopted for the purpose of securing to a recently 
emanicipated race all the civil rights of other citizens.14 
Unfortunately this has not been accomplished. The legisla­
tures and officials of the southern states have, through 
legislative policy, continued to prevent Negro citizens from 
obtaining their civil rights by means of actions which only 
gave lip service to the word “ equal.”  One of the most 
authoritative studies made of the problem of the Negro in 
the United States points out that:

“ While the federal Civil Rights Bill of 1875 was 
declared unconstitutional, the Reconstruction Amend- * 11

13 Morgan v. Virginia, 328 U. S. 373.
11 Strauder v. West Virginia, 100 U. S. 303.



2 9

merits to the Constitution—which provided that the 
Negroes are to enjoy full citizenship in the United 
States, that they are entitled to ‘ equal benefit of all 
laws,’ and that ‘ no state shall make or enforce any 
law which shall abridge the privileges and immunities 
of citizens of the United States’—could not be so 
easily disposed of. The Southern whites, therefore, 
in passing their various segregation laws to legalize 
social discrimination, had to manufacture a legal fic­
tion of the same type as we have already met in the 
preceding discussion on politics and justice. The 
legal term for this trick in the social field, expressed 
or implied in most of the Jim Crow statutes, is 
‘ separate but equal.’ That is, Negroes were to get 
equal accommodations, but separate from the whites. 
It is evident, however, and rarely denied, that there 
is practically no single instance of segregation in the 
South which has not been utilized for a significant 
discrimination. The great difference in quality of 
service for the two groups in the segregated set-ups 
for transportation and education is merely the most 
obvious example of how segregation is an excuse for 
discrimination. Again the Southern white man is in 
the moral dilemma of having to frame his laws in 
terms of equality and to defend them before the 
Supreme Court— and before his own better con­
science, which is tied to the American Creed—while 
knowing all the time that in reality his laws do not 
give equality to Negroes, and that he does not want 
them to do so.”  15

In one of the early cases interpreting these amend­
ments it was pointed out that: “ At the time when they were 
incorporated into the Constitution, it required little knowl­
edge o f human nature to anticipate that those who had 
long been regarded as an inferior and subject race would, 
when suddenly raised to the rank of citizenship, be looked 
upon with jealousy and positive dislike, and that state laws

15 Gunnar Myrdal, An American Dilemma (1944), Vol. 1, pages 
580, 581.



30

might be enacted or enforced to perpetuate the distinctions 
that had before existed. Discrimination against them had 
been habitual. It was well known that, in some States, laws 
making such discriminations then existed, and others might 
well be expected. . . . They especially needed protection 
against unfriendly action in the States where they were 
resident. It was in view of these considerations the 14th 
Amendment was framed and adopted. It was designed to 
assure to the colored race the enjoyment of all of the civil 
rights that under the law are enjoyed by white persons, and 
to give to that race the protection of the General Govern­
ment, in that enjoyment, whenever it should be denied by 
the States. It not only gave citizenship and the privileges 
of citizenship to persons of color, but it denied to any State 
the power to withhold from them the equal protection of the 
laws, and authorized Congress to enforce its provisions hy 
appropriate legislation. ’ ’ 16

Mr. Justice Strong in this opinion also stated: “ The 
words of the Amendment, it is true, are prohibitory, but 
they contain a necessary implication of a positive immunity, 
or right, most valuable to the colored race— the right to 
exemption from unfriendly legislation against them dis­
tinctly as colored; exemption from legal discrimination, im­
plying inferiority in civil society, lessening the security of 
their enjoyment of the rights which others enjoy, and dis­
criminations which are steps towards reducing them to the 
condition of a subject race.” 17

It is unfortunate that the first case to reach this Court 
on the question of whether or not segregation of Negroes 
was a violation of the Fourteenth Amendment should come 
during the period immediately after the Civil War when

10 Strauder v. W est Virginia, supra, at 306.
17 Ibid.



31

the Fourteenth Amendment was regarded as a very narrow 
limitation on state’s rights.

The first expression by this Court of the doctrine of 
“ separate but equal”  facilities in connection with the re­
quirements of equal protection of the law appears in the 
case of Plessy v. Ferguson.16 That case involved the validity 
of a Louisiana statute requiring segregation on passenger 
vehicles. The petitioner there claimed that the statute 
was unconstitutional and void. A  demurrer by the State 
of Louisiana was sustained, and ultimately this Court 
affirmed the judgment of the Louisiana courts in holding 
that the statute did not violate the Thirteenth Amendment 
nor did it violate the Fourteenth Amendment. Mr. Justice 
Brown in his opinion for the majority of the Court pointed 
out that:

“ A statute which implies merely a legal distinc­
tion between the white and colored races—a distinc­
tion which is founded in the color of the two races, 
and which must always exist so long as white men 
are distinguished from the other race by color—has 
no tendency to destroy the legal equality of the two 
races, or reestablish a state of involuntary servi­
tude . . . ”  (163 U. S. 537, 543).

Mr. Justice B row n , in continuing, stated that the object 
of the Fourteenth Amendment was to enforce absolute 
equality before the law but:

‘ ‘ . . . Laws permitting, and even requiring, their 
separation in places where they are liable to be 
brought into contact do not necessarily imply the in­
feriority of either race to the other, and have been 
generally, if not universally, recognized as within the 
competency of the state legislatures in the exercise 
of their police power. . . . ”  18 19

18163 U. S. 537, 543.
19 Id. at page 543.



3 2

It should be noted that this case was based solely on 
the pleadings, and that there was no evidence either before 
the lower courts or this Court on either the reasonableness 
of the racial distinctions or of the inequality resulting from 
segregation of Negro citizens. The plaintiff’s right to 
“ equality”  in fact was admitted by demurrer. The deci­
sion in the Plessy case appears to have been based upon the 
decision of Roberts v. Boston, 5 Cush. 198 (1849), a case 
decided before the Civil War and before the Fourteenth 
Amendment was adopted. In the Plessy case, the majority 
opinion cites and relies upon language in the decision in 
the Roberts case and added: “ It was held that the powers 
of the Committee extended to the establishment of separate 
schools for children of different ages, sexes and colors, 
and that they might also establish special schools for poor 
and neglected children, who have become too old to attend 
the primary school, and yet have not acquired the rudiments 
of learning, to enable them to enter the ordinary schools. ’ ’ 20

Mr. Justice H arlan in his dissenting opinion pointed out 
that:

‘ ‘ In respect of civil rights, common to all citizens, 
the Constitution of the United States does not, I 
think, permit any public authority to know the race 
of those entitled to be protected in the enjoyment of 
such rights. Every true man has pride of race, and 
under appropriate circumstances, when the rights of 
others, his equals before the law, are not to be af­
fected, it is his privilege to express such pride and 
to take such action based upon it as to him seems 
proper. But I deny that any legislative body or ju­
dicial tribunal may have regard to the race of citizens 
when the civil rights of those citizens are involved. 
Indeed such legislation as that here in question is 
inconsistent, not only with that equality of rights

20 Id. at pages 544-545.



3 3

which pertains to citizenship, national and state, but 
with the personal liberty enjoyed by every one within 
the United States”  (163 U. S. 537, 554-555).

and
“ There is no caste here. Our Constitution is 

color-blind, and neither knows nor tolerates classes 
among citizens. In respect of civil rights, all citizens 
are equal before the law. The humblest is the peer 
of the most powerful. The law regards man as man, 
and takes no account of his surroundings or of his 
color when his civil rights as guaranteed by the su­
preme law of the land are involved. It is therefore 
to be regretted that this high tribunal, the final ex­
positor of the fundamental law of the land, has 
reached the conclusion that it is competent for a state 
to regulate the enjoyment by citizens of their civil 
rights solely upon the basis of race”  (163 U. S. 537, 
559).

More recent decisions of the Supreme Court support Mr. 
Justice Harlan’s conclusion.21 In re-affirming the invalidity 
of racial classification by governmental agencies, Mr. Chief 
Justice Stone speaking for the Court in the case of Hira- 
bayashi v. United States stated: “ Distinctions between
citizens solely because of their ancestry are by their very 
nature odious to a free people whose institutions are founded 
upon the doctrine of equality. For that reason legislative 
classification or discrimination based on race alone has 
often been held to be a denial of equal protection.” 22

In the same case, Mr. Justice Murphy filed a concurring 
opinion in which he pointed out that racial distinctions 
based on color and ancestry “ are utterly inconsistent with 
our traditions and ideals. They are at variance with the 
principles for which we are now waging war.” 23

21 Hirabayashi v. United States, 320 U. S. 81.
22 Id, at page 100.
23 Id. at page 110.



34

Mr. Justice Murphy in a concurring opinion in a case 
involving discrimination against Negro workers by a rail­
road brotherhood acting under a federal statute (Railway 
Labor Act) pointed out:

‘ ‘ Suffice it to say, however, that this constitutional 
issue cannot be lightly dismissed. The cloak of 
racism surrounding the actions of the Brotherhood 
in refusing membership to Negroes and in entering 
into and enforcing agreements discriminating against 
them, all under the guise of Congressional authority, 
still remains. No statutory interpretation can erase 
this ugly example of economic cruelty against colored 
citizens of the United States. Nothing can destroy 
the fact that the accident of birth has been used as 
the basis to abuse individual rights by an organiza­
tion purporting to act in conformity with its Con­
gressional mandate. Any attempt to interpret the 
Act must take that fact into account and must realize 
that the constitutionality of the statute in this respect 
depends upon the answer given.

“ The Constitution voices its disapproval when­
ever economic discrimination is applied under au­
thority of law against any race, creed or color. A 
sound democracy cannot allow such discrimination to 
go unchallenged. Racism is far too virulent today to 
permit the slightest refusal, in the light of a Consti- 
tion that abhors it, to expose and condemn it when­
ever it appears in the course of a statutory interpre­
tation.” 24

The doctrine of “ separate but equal”  treatment recog­
nized in Plessy v. Ferguson was arrived at not by any study 
or analysis of facts but rather as a result of an ad hominem 
conclusion of “ equality'”  by state courts. As a mattei of 
fact, this Court has never passed directly upon the question 
of the validity or invalidity of state statutes requiring the

24 Steele v. L. N. R. R. Co., 323 U. S. 192, 209.



35

segregation of the races in public schools. The first case 
on this point in this Court is Cummings v. Richmond County 
Board of Education25 The Board of Education of Rich­
mond County, Georgia, had discontinued the only Negro 
high school but continued to maintain a high school for 
white pupils. Petitioner sought an injunction to restrain 
the board from using county funds for the maintenance of 
the white high school. The trial court granted an injunction 
which was reversed by the Georgia Supreme Court and af­
firmed by this Court. The opinion written by Mr. Justice 
Harlan expressly excluded from the issues involved any 
question as to the validity of separate schools. The opinion 
pointed out:

“ It was said at the argument that the vice in the 
common-school system of Georgia was the require­
ment that the white and colored children of the state 
be educated in separate schools. But we need not 
consider that question in this case. No such issue 
was made in the pleadings”  (175 U. S. 528, 543).

In the case Gong Lum v. Rice,26 the question was raised 
as to the right of a state to classify Chinese as colored and to 
force them to attend schools set aside for Negroes. In that 
case the Court assumed that the question of the right to 
segregate the races in its educational system had been de­
cided in favor of the states by previous Supreme Court 
decisions.

The next school case was the Gaines case which has been 
discussed above. In that case this Court without making an 
independent examination of the validity of the doctrine of 
“ separate but equal”  facilities stated: “ The state has 
sought to fulfill that obligation by furnishing equal facili­

25 175 U. S. 528.
26 275 U. S. 78.



36

ties in separate schools, a method the validity of which has 
been sustained by our decisions.”  This Court cited as au­
thority for this statement the decisions which have been 
analyzed above.

Segregation in public education helps to preserve and 
enforce a caste system which is based upon race and color. 
It is designed and intended to perpetuate the slave tradi­
tion sought to be destroyed by the Civil War and to prevent 
Negroes from attaining the equality guaranteed by the fed­
eral Constitution. Racial separation is the aim and motive 
of paramount importance—an end in itself. Equality, even 
if the term be limited to a comparison of physical facili­
ties, is and can never be achieved.

The only premise on which racial separation can be 
based is that the inferiority and the undesirability of the 
race set apart make its segregation mandatory in the inter­
est of the well-being of society as a whole. Hence the very 
act of segregation is a rejection of our constitutional axiom 
of racial equality of man.

The Supreme Court in Plessy v. Ferguson, as we have 
seen, without any facts before it upon which to make a 
valid judgment adopted the “ separate but equal”  doctrine. 
Subsequent cases have accepted this doctrine as a constitu­
tional axiom without examination. Hence what was in re­
ality a legal expedient of the Reconstruction Era has until 
now been accepted as a valid and proved constitutional 
theory.

C. Equality Under a Segregated System Is a Legal Fic­
tion and a Judicial Myth.

There is of course a dictionary difference between the 
terms segregation and discrimination. In actual practice, 
however, this difference disappears. Those states which



3 7

segregate by statute in the educational system have been 
primarily concerned with keeping the two races apart and 
have uniformly disregarded even their own interpretation 
of their requirements under the Fourteenth Amendment to 
maintain the separate facilities on an equal basis.

1. The General Inequities in Public Educational 
Systems Where Segregation Is Required.

Racial segregation in education originated as a device to 
“ keep the Negro in his place” , i. e., in a constantly inferior 
position. The continuance of segregation has been synony­
mous with unfair discrimination. The perpetuation of the 
principle of segregation, even under the euphemistic theory 
of “ separate but equal” , has been tantamount to the perpet­
uation of discriminatory practices. The terms “ separate”  
and “ equal”  can not be used conjunctively in a situation 
of this kind; there can he no separate equality.

Nor can segregation of white and Negro in the matter 
of education facilities be justified by the glib statement 
that it is required by social custom and usage and generally 
accepted by the “ society”  of certain geographical areas. 
Of course there are some types of physical separation which 
do not amount to discrimination. No one would question 
the separation of certain facilities for men and women, for 
old and young, for healthy and sick. Yet in these cases no 
one group has any reason to feel aggrieved even if the 
other group receives separate and even preferential treat­
ment. There is no enforcement of an inferior status.

This is decidedly not the case when Negroes are seg­
regated in separate schools. Negroes are aggrieved; they 
are discriminated against; they are relegated to an inferior 
position because the entire device of educational segregation 
has been used historically and is being used at present to



38

deny equality of educational opportunity to Negroes. This 
is clearly demonstrated by the statistical evidence which 
follows.

The taxpayers’ dollar for public education in the 17 
states and the District of Columbia which practice com­
pulsory racial segregation was so appropriated as to de­
prive the Negro schools of an equitable share of federal, 
state, county and municipal funds. The average expense 
per white pupil in nine Southern states reporting to the 
U. S. Office of Education in 1939-1940 was almost 212% 
greater than the average expense per Negro pupil.27 Only 
$18.82 was spent per Negro pupil, while the same average 
per white pupil was $58.69.28

Proportionate allocation of tax monies is only one cri­
terion of equal citizenship rights, although an important 
one. By every other index of the quality and quantity of 
educational facilities, the record of those states where seg­
regation is a part of public educational policy clearly demon­
strates the inequities and second class citizenship such a 
policy creates. For example, these states in 1939-1940 gave 
whites an average of 171 days of schooling per school term. 
Negroes received an average of only 156 days.29 The aver­
age for a white teacher was $1,046 a year. The average 
Negro teacher’s salary was only $601.30

The experience of the Selective Service administration 
during the war provides evidence that the educational in­
equities created by a policy of segregation not only deprive

27 Statistics of the Education of Negroes ( A  Decade of Progress) 
by David T. Blose and Ambrose Caliver (Federal Security Agency, 
U. S. Office of Education, 1943). Part I, Table 6, p. 6.

28 Ibid., Table 8.
29 Biennial Surveys of Education in the United States. Statistics 

of State School Systems, 1939-40 and 1941-42 (1944), p. 36.
30 Blose and Caliver, op. cit., supra note 9, Part 1, p. 6, Table 7.



3 9

the individual Negro citizens of the skills necessary to a 
civilized existence and the Negro community of the leader­
ship and professional services it so urgently needs, but also 
deprive the state and nation of the full potential embodied 
in the intellectual and physical resources of its Negro 
citizens. In the most critical period of June-July 1943, when 
the nation was desperately short of manpower, 34.5% of 
the rejections of Negroes from the armed forces were for 
educational deficiencies. Only 8% of the white selectees 
rejected for military service failed to meet the educational 
standards measured by the Selective Service tests.31

Lest there be any doubt that this generalization applies 
to Oklahoma as well, let us look at the same data for the 
same period with respect to this state. We find that 16.1% 
of the Negro rejections were for educational deficiency, 
while only 3% of the white rejections were for this reason.32

This demonstration of the effects of inequitable segrega­
tion in education dramatizes one of the key issues which 
this Court must decide. Failure to provide Negroes with 
equal educational facilities has resulted in deprivations to 
the state and nation as well as to the Negro population. 
The Constitution establishes a set of principles to guide 
human conduct to higher levels.33 If the courts reject the 
theory of accepting the lowest common denominator of 
behavior because this standard is so blatantly detrimental 
to the individual citizen, to the state, and to the nation as 
a whole—then they will be exercising the power which the 
Constitution has vested in them for the protection of the 
basic values of our society.

31 The Black and White of Rejections for Military Service. Mont­
gomery, Ala., American Teachers Association (1944), p. 5.

32 Ibid.
33 Higher Education for American Democracy, A Report of the 

President’s Commission on Higher Education, Vol. I, 1947, p. 34. 
Government Printing Office.



40

2. On the Professional School Level the Inequities 
Are Even More Glaring.

As gross as is the discrimination in elementary educa­
tion, the failure to provide equal educational opportunities 
on the professional levels is proportionately far greater. 
Failure to admit Negroes into professional schools has cre­
ated a dearth of professional talent among the Negro popu­
lation. It has also deprived the Negro population of 
urgently needed professional services. It has resulted in a 
denial of equal access to such services to the Negro popula­
tion even on a. “ separate”  basis.

In Oklahoma, the results of the legal as well as the ex­
tra-legal policies of educational discrimination have de­
prived the Negro population of professional services in the 
fields of medicine, dentistry and law. The extent of this 
deprivation can best be judged by the following data, in 
which the figures represent one lawyer, doctor and dentist, 
respectively, to the following number of white and Negro 
population:34

Profession White Negro
Law ______ ____ 643 6,754
Medicine _____ 976 2,165
Dentistry_____ . 2,931 8,887

That this critical situation is not peculiar to Oklahoma 
alone but is an inevitable result of the policy of racial 
segregation and discrimination in education is demonstrated 
by an analysis made by Dr. Charles H. Thompson.35 He 
states that:

“ In 1940 there were 160,845 white and 3,524 Negro 
physicians and surgeons in the United States. In

34 Based on data in Sixteenth Census of the United States: Popu­
lation, Vol. I ll , Part 4, Reports by States (1940).

35 Charles H. Thompson, “ Some Critical Aspects of the Problem 
of the Higher and Professional Education for Negroes,” Journal of 
Negro Education (Fall 1945), pp. 511-512.



41

proportion to population these represented one physi-
cian to the following number of the white and Negro
population, respectively:

Section White Negro
U. S_________________ 735 3,651
North _______________ 695 1,800*
South _______________ 859 5,300*
W est____ ____________ 717 2,000*
Mississippi __________ 4,294 20,000*

“ A similar situation existed in the field of dentis-
try, as far as the 67,470 white and 1,463 Negro den-
tists were concerned:

Section White Negro
U. S. ________________ 1,752 8,800*
North _______________ 1,555 3,900*
South _______________ 2,790 14,000*
West ________________ 1,475 3,900*
Miss. . 14,190 37,000*

“ In proportion to population there are five times 
as many doctors and dentists in the country as a 
whole as there are Negro doctors and dentists; and 
in the South, six times as many. Even in the North 
and West where we find more Negro doctors and 
dentists in the large urban centers, there are two and 
one-half times as many white dentists and doctors 
as Negro.

“ Law—In 1940 there were 176,475 white and 
1,052 Negro lawyers in the U. S. distributed in pro­
portion to population as follows:

Section White Negro
U. S_______ __________ 670 12,230
North _______________ 649 4,000
South _______________ 711 30,000
W est____ ___________ 699 4,000
M iss._________________ 4,234 358,000

* To the nearest hundred or thousand.



42

“ There are 18 times as many white lawyers as 
Negro lawyers in the country as a whole; 45 times 
as many in the South; and 90 times as many in Mis­
sissippi. Even in the North and West there are six 
times as many white lawyers as Negro. With the 
exception of engineering, the greatest disparity is 
found in law.”  (Italics ours.)

The professional skills developed through graduate 
training are among the most important elements of our so­
ciety. Their importance is so great as to be almost self- 
evident. Doctors and dentists guard the health of their 
people. Lawyers guide their relationships in a compli­
cated society. Engineers create and service the technology 
that has been bringing more and more good to more and 
more people. Teachers pass on skills and knowledge from 
one generation to another. Social service workers min­
ister to the needs of the less fortunate groups in society and 
reduce the amount of personal hardship, deprivation, and 
social friction.

Yet the action of the State Supreme Court in this case, 
quite aside from any legal considerations, lends the sanc­
tion of that court to a series of extra-legal actions by which 
the various states have carried on a policy of discrimination 
in education. In Oklahoma, the 16 other states and the 
District of Columbia where separate educational facilities 
for whites and Negroes are mandatory, the provisions for 
higher education for Negroes are so inadequate as to de­
prive the Negro population of vital professional services.

The record of this policy of educational segregation and 
denial of professional education to Negroes is clear. In the 
17 states and the District of Columbia in 1939-1940 the fol­
lowing number of states made provisions for the public 
professional education of Negro and white students:36 30

30 Based on data in National Survey oj Higher Education for 
Negroes, Vol. II, p. 15. U. S. Office of Education, 1942.



43

Profession White Negro

Medicine ____________ 15 0
Dentistry_____ __ ____ 4 0
Law _________________ 16 1
Engineering _______ 17 0
Social Service________ 9 0
Library science ______ 13 1
Pharmacy ___________ 14 0

The result has been that the qualified Negro student is 
unable to obtain the professional education for which he 
may be fitted by aptitude and training.

Other sections of the country, too, practice discrimina­
tion against Negroes in professional schools by means of 
“ quotas”  and other devices.37 But only in the South is legal

37 “Wherever young Americans of ‘minority’ races and religions 
are denied, by the open or secret application of a quota system, the 
opportunity to obtain a medical, law or engineering education, apolo­
gists for the system have a standardized justification.

“In their racial-religious composition, the apologists contend, the 
professions must maintain ratios which correspond to those found in 
the composition of the whole population. Were the institution of 
higher learning left wide open to ambition and sheer merit, they argue, 
the professions would be ‘unbalanced’ by a disproportionate influx of 
Catholics, Negroes and Jews.

“ Such racial arithmetic hardly accords with our vaunted principles 
of democratic equality. In effect it establishes categories of citizen­
ship. It discriminates against tens of millions of citizens by denying 
their sons and daughters a free and equal choice of profession. If a 
ratio must be imposed on the basis of race, why not on the pigmen­
tation? Forcing a potentially great surgeon to take up some other 
trade makes sense only on the voodoo level of murky prejudice. It 
not only deprives the citizen of his legal and human rights but, no 
less important, it deprives the country of his potentially valuable ser­
vices.”—from “ Religious Prejudices in Colleges,” by Dan W . Dodson. 
The American Mercury (July 1946), p. 5. See also: “ Higher Edu­
cation for American Democracy” , A Report of the President’s Com­
mission on Higher Education, U. S. Government Printing Office, 
December, 1947, page 35. “ This practice is a violation of a major 
American principle and is contributing to the growing tension in one 
of the crucial areas of our democracy.”

/



44

discrimination practiced and it is thus in the South that 
the Negro population suffers the greatest deprivation of 
professional services.

The record is quite clear, and the implications of the 
above data are obvious. There is another implication, how­
ever, which is not as obvious but is of almost equal impor­
tance in the long-range development of the Negro people. 
From the ranks of the educated professionals come the 
leaders of a minority people. In the course of their daily 
duties they transmit their skills and knowledge to the people 
they serve. They create by their daily activities a better, 
more enlightened citizenship because they transmit knowl­
edge about health, personal care, social relationships and 
respect for and confidence in the law.

The average Negro in the South looks up to the Negro 
professional with a respect that sometimes verges on awe. 
It is frequently the Negro professional who is able to 
articulate the hopes and aspirations of his people. The 
respondents, in denying to the petitioner access to equal 
educational facilities on the professional level within the 
State, also deny to the Negro population of Oklahoma equal 
access to professional services and deprive it of one of the 
most important sources of guidance in citizenship. This 
denial is not only injurious to petitioner, and to other 
Negro citizens of the State, but adverse to the interests of 
all the citizens of the State by denying to them the full 
resources of more than 168,849 Negro citizens.



45

D. There is No Rational Justification For Segregation in 
Professional Education and Discrimination Is a Neces­
sary Consequence of Any Separation of Professional 
Students On the Basis of Color.

1. The professional skills developed through graduate 
training are among the most important elements of our 
society. Their importance is so great as to be almost self- 
evident. They are the end results, the products of educa­
tion, but, at the same time, they do not constitute the full 
purpose of education.

“ It is a commonplace of the democratic faith 
that education is indispensable to the maintenance 
and growth of freedom of thought, faith, enterprise, 
and association. Thus the social role of education 
in a democratic society is at once to insure equal 
liberty and equal opportunity to differing individuals 
and groups, and to enable the citizens to understand, 
appraise, and redirect forces, men, and events as 
these tend to strengthen or to weaken their liber­
ties.” 38

It clearly follows then, that segregation is an abortive 
factor in the full realization of the objectives of education. 
First, it prevents both the Negro and white student from 
obtaining a full knowledge of the group from which he is 
separated, thereby infringing upon the natural rights of an 
enlightened citizen. Second, a feeling of distrust for the 
minority group is fostered in the community at large, a 
psychological atmosphere which is not favorable to the 
acquisition of an education or to the discharge of the duties 
of a citizen in redirecting “ forces, men and events” . Lastly, 
one of the effects of segregation in education with respect

38 "Higher Education for American Democracy” , A Report of the 
President’s Commission on Higher Education, U. S. Government 
Printing Office, December 1947, p. 5.



46

to the general community is that it accentuates imagined 
differences between Negroes and whites.

This false assumption of differences is given an appear­
ance of reality by the formal act of physical separation. 
Furthermore, as the segregation is against the will of the 
segregated, it produces a very favorable situation for the 
increase of bad feeling, and even conflict, rather than the 
reverse.39

It is clear, then, that in seeking a form of education free 
from any racial restrictions, one wants not only the benefits 
and skills that that education can yield him, but, primarily, 
he desires to live and function as an enlightened citizen in 
a representative democracy.

2. Qualified educators, social scientists, and other ex­
perts have expressed their realization of the fact that 
“ separate”  is irreconcilable with “ equality” .40 There can 
be no separate equality since the very fact of segregation 
establishes a feeling of humiliation and deprivation to the 
group considered to be inferior.41

The recently published report of the President’s Com­
mittee on Civil Rights states:

“ No argument or rationalization can alter this 
basic fact: a latv which forbids a group of American 
citizens to associate with other citizens in the ordi­
nary course of daily living creates inequality by im­
posing a caste status on the minority group.” 42

39 Gunnar Myrdal, An American Dilemma, New York, 1944, Vol. 
I, page 625: “ But they are isolated from the main body of whites, 
and mutual ignorance helps reenforce segregative attitudes and other 
forms of race prejudice” .

40 Gunnar Myrdal, op cit., page 580.
41 Carey McWilliams, “ Race Discrimination and the Law” , Science 

and Society, Volume IX , Number 1, 1945.
42 “ To Secure These Rights” , The Report of the President’s Com­

mittee on Civil Rights, U. S. Government Printing Office, 1947, p. 82.



47

The sociological and political significance of the practice 
of segregation is found not only in the deprivations experi­
enced by the minority group, but by society at large. In one 
of the most exhaustive studies ever conducted on the sub­
ject of segregation, the noted sociologist Gunnar Myrdal has 
stated:

“ Segregation and discrimination have had ma­
terial and moral effects on whites, too. Booker T. 
Washington’s famous remark that the white man 
could not hold the Negro in the gutter without getting 
in there himself, has been corroborated by many 
white southern and northern observers. Through­
out this book, we have been forced to notice the low 
economic, political, legal and moral standards of 
Southern whites—kept low because of discrimination 
against Negroes and because of obsession with the 
Negro problem. Even the ambition of Southern 
whites is stifled partly because, without rising far, it 
is so easy to remain ‘ superior’ to the held-down 
Negroes.” 43

There are many other authoritative studies which bear out 
Mr. Myrdal’s observations.44

In addition to the psychological atmosphere of distrust 
and the practical inequities which result under a segregated 
system, the citizens of both the majority and minority 
groups are deprived of that inter-change of ideas and atti­
tudes which is so necessary to a full education.

3. No one questions the kind of separation which the 
community imposes in the interest of public safety, con­
venience or welfare. There is ample justification for differ­
ences in the treatment of the old and the young, the healthy

43 Gunnar Myrdal, An American Dilemma, New York, 1944, Vol. 
I, page 644.

44 H. Cantril, Psychology of Social Movements, 1941, pages 78-122; 
Gene Weltfish, “ Causes of Group Antagonism”, Journal of Social 
Issues, Vol. 1.



48

and the sick, the criminal and the law-abiding. In each of 
these cases the act of separation is justified and is moti­
vated by a desire to protect society at large, and to promote 
the interest of both groups.

There is, however, no rational basis, no factual justifi­
cation for segregation in education on the grounds of race 
or color. This type of segregation is often rationalized on 
the ground that “ Negroes have an inferior mental capacity 
to whites.”  Yet this premise is completely invalid and no 
act of segregation based upon it can be upheld as reason­
able.45 46 Scientific studies have been conducted in which rep­
resentative samples of both groups, Negro and white, have 
been placed in nearly identical situations with identical 
tasks to perform. In a study by an eminent sociologist, it 
is stated:

‘ ‘ The general conclusion can be only that the case 
for psychological race differences has never been 
proved. . . . The general conclusion of this book is 
that there is no scientific proof of racial differences 
in mentality. . . . There is no reason, therefore, to 
treat two people differently because they differ in 
their physical type. There is no justification for de­
nying a Negro a job or an education because he is a 
Negro. No one lias been able to demonstrate that 
ability is correlated with skin color or head shape 
or any of the anatomical characteristics used to 
classify races.” 40

45 The Black and White of Rejections for Military Service, Ameri­
can Teachers Association, August, 1944, page 29.

Otto Klineberg, Negro Intelligence and Selective Migration, New 
York, 1935.

J. Peterson & L. H. Lanier, “ Studies in the Comparative Abilities 
of Whites and Negroes” , Mental Measurement Monograph, 1929.

W . W . Clark, “ Los Angeles Negro Children” , Educational Re­
search Bulletin, Los Angeles, 1923.

46 Otto Klineberg, Race Differences 343 (1935).



49

Moreover, it has been demonstrated, that in cases where 
no segregation exists, or where it has ceased to exist, the 
results have never been disastrous but often favorable. 
Lloyd W. Warner in his study of New Haven Negroes says:

“  . . . children in New Haven are not taught color 
consciousness in the schools and develop it only 
slowly from outside influences. There is no discrimi­
nation in the New Haven public-school system. . . . 
There are colored children in four out of every seven 
schools in the city, and in none are they segregated 
by class, seat, or section. Reports indicate, also, that 
the white teachers make no distinction in their treat­
ment of the two races. . . .

“ In many early grades, white and black children 
romp and learn together. Negroes compete without 
restraint or embarrassment . . . and, if proficient, are 
cheered and honored. They debate, sing, and act in 
dramatics, generally without discrimination.”  
# * * • * * # # *

“ There is no feeling of difference among fellow 
teachers, w7hite or black. They entertain each other 
socially and make friends, eat, banquet, talk and play 
cards together. They are united against discrimina­
tion when it shows itself.” 47 48

Since all available evidence controverts the theory that 
Negroes have an inferior mental capacity to whites, and 
moreover, since the two groups work well together and to 
their mutual advantage, it must be concluded that any claim 
of inferiority is motivated by a desire to perpetuate segre­
gation per se.4S

47 Lloyd W . Warner, New Haven Negroes, New Haven, 1940, pp. 
277-279.

48 D. O. McGovney, “ Racial Residential Segregation by State Court 
Enforcement of Restrictive Agreements, Covenants or Conditions in 
Deeds is Unconstitutional” (1945), 33 Cal. L. Rev. 5, 27 (note 94: 
“When a dominant race, whether white or Negro, demands separa­
tion, it is fallacious to say . . . that the intention and effect is not 
to impose a ‘badge of inferiority’ on the other.” )



50

4. It may be that the pattern of segregation which has 
existed in the South for more than fifty years cannot be 
abolished instantaneously. But although the term “ grad­
ual”  may be used adjectively in relation to the overall pat­
tern, it should not be used as a rationalization for inaction 
in this case. The Report of the President’s Commission on 
Higher Education, published in December, 1947, advocates 
as its sixth step toward equalizing educational opportuni­
ties the immediate abolition of segregation, in the following 
words:

“ The time has come to make public education at 
all levels equally accessible to all, without regard to 
race, creed, sex or national origin.

‘ ‘ I f education is to make the attainment of a more 
perfect democracy one of its major goals, it is im­
perative that it extend its benefits to all on equal 
terms. It must renounce the practices of discrimi­
nation and segregation in educational institutions as 
contrary to the spirit of democracy.” 49

Only a few months earlier, the Report of the President’s 
Commission on Civil Rights had recommended:

“ The elimination of segregation, based on race, 
color, creed, or national origin, from American life.

“ The separate but equal doctrine has failed in 
three important respects. First, it is inconsistent 
with the fundamental equalitarianism of the Ameri­
can way of life in that it marks groups with the brand 
of inferior status. Secondly, -where it has been fol­
lowed, the results have been separate and unequal 
facilities for minority peoples. Finally, it has kept 
people apart despite incontrovertible evidence that 
an environment favorable to civil rights is fostered 
whenever groups are permitted to live and work to­

49 “ Higher Education for American Democracy” , A Report of the 
President’s Commission on Higher Education, U. S. Government 
Printing Office, Washington, December, 1947, p. 38.



51

gether. There is no adequate defense of segrega­
tion.” 50

All of the studies referred to herein demonstrate that 
segregation inevitably results in inequality and injustice. 
Thus, an objective examination of the facts furnishes the 
basis for a new ruling by this Court—a new ruling which 
will be evolutionary rather than revolutionary.

Ill
The Doctrine of “ Separate But Equal” Facilities Should

Not Be Applied to This Case.

The examination of the “ separate but equal”  doctrine 
reveals that it is at best a bare constitutional hypothesis 
based upon a fallacious evaluation of the purpose and 
meaning inherent in any policy or theory of enforced racial 
separation. This Court should not recognize such a doctrine 
in the absence of clear and unmistakable evidence that such 
enforced separation affords the equality guaranteed by the 
Fourteenth Amendment, which “ equality”  this Court has, 
while passing upon the validity of segregation statutes, 
assumed actually to exist.

The asserted right of the State of Oklahoma to enforce 
segregation of the races in public schools even to the extent 
of excluding petitioner from the only law school must be 
weighed against the national interests as set forth in the 
Constitution.51 This Court has re-stated our national policy

so « j Q Secure These Rights” , The Report of the President’s Com­
mittee on Civil Rights, U. S. Government Printing Office, 1947, 
p. 166.

51 Cf.: Morgan v. Virginia, 328 U. S. 373; Marsh v. Alabama, 326 
U. S. 501; Cantwell v. Connecticut, 310 U. S. 296; Railway Mail 
Association v. Corsi, 326 U. S. 88.



52

to be opposed to racial classifications because such classifi­
cations are irrational and unreasonable criteria “ odious to 
a free people whose institutions are founded upon the doc­
trine of equality” .62

The flagrant discrimination against the petitioner in this 
case is directly in the teeth of the Fourteenth Amendment 
and was made with full knowledge of the decision of this 
Court in the G aines case. The respondents only defense is 
a reliance upon certain language in this Court’s opinion. 
Petitioner has already lost more than a year of legal train­
ing which she would have received had she not been a Negro. 
This petitioner’s rights can only be protected by affirmative 
action of this court in recognizing her right to be admitted 
to the Law School of the University of Oklahoma without 
qualifying such relief by apparently recognizing the validity 
of the doctrine of “ separate but equal”  facilities in this 
case.

Conclusion

W herefore, it is respectfully submitted that the judg­
ment of the Supreme Court of Oklahoma should be reversed.

Submitted by,

T hurgood Marshall, 
A mos T. H all,

C ou n sel fo r  Petitioner.

R obert L. Carter,
E dward R. D udley,
M arian W yn n  Perry,
F rank D. R eeves,
F ranklin H. W illiams,

O f Counsel.

62 See Hirabayashi v. United States, 320 U. S. 81, 100.







IN THE SUPREME COURT OF THE 
UNITED STATES

OCTOBER TERM, 1947

No. 369

A da Lois Sipuel,
P etitio n er ,

VERSUS

Board of Regents of the U niversity of Oklahoma, 
George L. Cross, M aurice H. M errill, 

George W adsack and Roy Gittinger,
R e sp o n d e n ts .

B R IE F  OF RESPONDENTS

M ac Q. W illiamson,
Attorney General o f Oklahom a,

Fred Hansen,
First Assistant Attorney General. 
State Capitol,
Oklahom a C ity, Oklahoma,

M aurice H. M errill,
John B. Cheadle,
N orm an, Oklahoma,
A t t o r n e y s  fo r  R e sp o n d e n ts .

December, 1947.

KING LAW BRIEF COMPANY. 418 NORTHWEST THIRD, OKLAHOMA CITY— PHONE 3-2969





I N D E X

PAGE

Statement o f the C a s e __________________________________ 1

A rgum ent_______ ________________________________________  3

Authority:—

Payne, County Treasurer et al. v. Smith, Judge,
107 Okla. 165, 231 Pac. 4 6 9  __________________  3

Stone v. Miracle, District Judge,
196 Okla. 4 2 , 162 Pac. (2 d )  5 3 4  ____________ 3

12 O. S. 19 41 , Section 1 4 5 1 ________________________  3

First Proposition: T h e petitioner may not secure 
in this proceeding a reconsideration of the “ Sep­
arate but Equal” d o c trin e ________________________  5

Authority:—

Alice State Bank v. Houston Pasture C o.,
2 4 7  U . S. 2 4 0 , 2 4 2  ____________________________ o

Commercial Credit C o. v. United States,
176 U . S. 2 2 6 , 2 2 9  _______________________________

Gaines v. Canada, 30 5  U . S. 3 4 4  _________________
Gunning v. Cooley, 281 U . S. 90 , 98 ____________
Morehead ex rel. N ew  Y o rk  v. Tipaldo,

298  U . S. 5 8 7 , 6 0 4  _______________________________
Steele v. D rum m ond, 27 5  U . S. 199, 203  _______
Rule 38, Paragraph 2 o f this C o u r t _______________

Second Proposition: T h e  decision of the Supreme 
Court of Oklahom a accords full recognition to the 
asserted constitutional right of the petitioner to 
have provision made for her legal education w ith­
in the State and establishes that the State of 
Oklahoma has provided an effective basis on 
which the petitioner may secure such education__  7

\o vo 
vo 'o m



II

(a ) T he decision o f the Supreme Court of O kla­
homa fully accepts the proposition that the Equal 
Protection Clause o f the Fourteenth Amendment 
requires a State which provides education in law  
to white students at an institution within its bor­
ders to likewise provide such education within the 
State to students belonging to other races, and 
that this right is available to any applicant o f one 
of such other races w ho indicates an intention to 
accept such tra in in g ________________________________  7

A u th ority :—

Missouri ex rel. Gaines v. Canada, 305  U .S . 33 7

(b )  T h e decision o f the Supreme Court o f O kla­
homa establishes that the law of the State vests 
in the petitioner a right to education in law within  
the State, at a public institution of higher educa­
tion, on a basis o f equality with white students 
admitted to law courses at the University of

P A G E

O k la h o m a _____________________________________________ 8

A u th ority :—

Allen-Bradley Local v. W isconsin Em ploym ent
Relations Board, 31 5  U . S. 740 , 746  _________ 12

American Power and Light C o. v. Securities and
Exchange C om m ., 32 9  U . S. 9 0 _______________  11

Atchison, Topeka & Santa Fe Railroad C o. v. 
Railroad Com m , o f California,
283  U . S. 3 8 0 , 3 9 0  _______________________________ 12

Board of Regents v. Childers, State Auditor,
197  Okla. 35 0 , 170 P a c .(2 d ) 1 0 1 8 _________ 10

D ouglas v. N ew  Y o rk , N ew  Haven and Hartford
Railroad C o., 2 7 9  U . S. 3 7 7 , 3 8 6  _______________  12

E x  parte T indall, 102 Okla. 192 , 2 0 0 ,
2 2 9  Pac. 125, 132 _______________________________ 10

In re: Assessment of Kansas C ity Southern R ail­
way. C o ., 168 Okla. 4 9 5 , 33 Pac. (2 d )  7 7 2 _ _  10

Overton v. State, 7 Okla. Cr. 2 0 3 , 2 0 5 ,
114  Pac. 1 1 3 2 ___________________________________  11



Ill

Quong H am  W a h  C o. v. Industrial Accident
Commission, 23 5  U . S. 4 4 5 , 4 4 9  _______________  12

Senn v. T ile  Layers Protective Union,
301 U . S. 4 6 8 , 4 7 7  ______________________________  12

State ex rel. Bluford v. Canada, 34 8  M o . 29 8 ,
30 9 , 153 S .W . (2 d )  12, 1 7 _____________________  11

Tam pa W ater W ork s Co. v. Tam pa,
199 U . S. 2 4 1 , 2 4 4  ______________________________  12

United States v. Texas, 3 1 4  U . S. 4 8 0 , 4 8 7  _____  12
Decision of the Supreme Court of O k la h o m a__  8
Oklahoma Constitution, Article 1, Section 1_____  10
Oklahoma Constitution, Article 13, Section 3 __  9
Oklahoma Constitution, Article 1 3 -A , Section 2 9
Oklahoma Constitution, Article 1 3 -A , Section 3 9
Oklahoma Constitution, Article 15, Section 1_ 10
70 O . S. 1941 , Sections 4 5 5 , 4 5 6  and 4 5 7 ______ 9
70 O . S. 1941 , Section 1 4 5 1 _____________________  9

(c) T h e Oklahoma law, thus interpreted, is in 
accord with the Equal Protection Clause of the 
Fourteenth Amendment, as interpreted by this 
C o u r t _________________________________________________  13

A uth ority :—
Berea College v. Kentucky, 211 U . S. 45 , 55 ______ 13
Cum m ing v. County Board of Richmond County,

175 U . S. 5 2 8  _____________________________________ 13
Gong Lum  v. Rice, 27 5  U . S. 7 8 __________________  13
Missouri ex rel. Gaines v. Canada, 30 5  U . S. 3 3 7 ,

3 4 4 , 3 4 6 , 3 4 9 , 35 1 , 35 2  __________________ 13, 14, 15
Plessy v. Ferguson, 163 U . S. 53 7 , 5 4 4  -------------  13

Third Proposition: T h e petitioner has failed to seek 
relief from or against the officials w ho may pro­
vide it under the law of O k la h o m a ________________  16

A uth ority :—
Copperweld Steel C o. v. Industrial Commission  

of Ohio, 3 2 4  U . S. 7 8 0 , 785 __________________  17

PAGE



IV

Decision of the Supreme Court of O k la h o m a_____  17
Lawrence v. St. Louis-San Francisco Railway Co.,

2 7 4  U . S. 5 8 8 , 59 2  ______________________________  18
Prentis v. Atlantic Coast Line C o.,

211  U . S. 2 1 0 , 2 3 0  _____________________________  18
St. Louis-San Francisco Railw ay Co. v. Alabama  

Public Service C om m ., 2 7 0  U . S. 5 6 0 , 5 6 3 __  18

Fourth Proposition: T h e case of State of Missouri 
ex rel. Gaines v. Canada ( 1 9 3 9 ) ,  305  U . S. 337 ,
83 L . ed. 2 0 8 , relied on by petitioners herein when 
properly construed, supports the decision of the 
Supreme Court of Oklahom a in the case at Bar 20

A u th ority :—
Bluford v. Canada, 32 Fed. Supp. 70 7 ,

Appeal dismissed, 119 Fed. (2 d )  799  --------- 23
Michael et al. v. W ith am  et al.,

165 S .W . (2 d )  3 7 8  _____________________________  23
State ex rel. Bluford v. Canada,

153 S .W . (2 d )  1 2 _______________________________  23
State of Missouri ex rel. Gaines v. Canada,

30 5  U . S. 3 3 7 , 83 L . ed. 2 0 8  __________________  20
State o f Missouri ex rel. Gaines v. Canada,

131 S .W . (2 d )  2 1 7 _____________________________  23
Constitution of Oklahom a, Article 1 3 -A ,

Section 2 __________________________________________23, 24

Conclusion ________________________________   27

P A G E



IN THE SUPREME COURT OF THE 
UNITED STATES

OCTOBER TERM, 1947

No. 369

A da Lois Sipuel,
P etitio n er ,

VERSUS

Board of Regents of the U niversity of Oklahoma, 
George L. Cross, M aurice H . M errill, 

George W adsack and Roy Gittinger,
Respondents.

B R IE F  OF RESPONDENTS

STATEMENT OF THE CASE

T h e “ Statement of the Case” and the “ Statement of 

Facts”  set forth on Pages 2 to 6 of petitioner’s brief, are 

substantially correct with the exception that respondents 

did not, as stated in said brief (P . 3 ) ,  refuse petitioner 

admission to the L aw  School o f the University of O kla­

homa on the ground:



2 Sip u e l  v. B oard  of R eg en ts  e t  a l .

“  ( 2 )  T h a t scholarship aid was offered by the State 
to Negroes to study law outside the State, * *

W hile certain allegations of fact set forth in said state­

ments are not, in all respects, accurate, respondents will 

fully clarify their position in relation to said allegations 

in our “ Argum ent” herein.

However, before concluding this “ Statement of the 

Case,”  respondents desire to call attention to the “ Order 

Correcting Opinion— June 5, 1 9 4 7 ,” 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 o f the Supreme Court o f Oklahom a, which opin­

ion appears on Pages 35 to 51 o f the record. In this con­

nection it will be noted that said correction should have 

been made in the first line o f the fourth paragraph of said 

opinion, which paragraph appears on Page 41 of the record, 

so that said line w ould read:

A s we view the matter the State itself could not 
place complete * * *

B y an examination of said decision, as it appears in 

180 Pac. (2 d )  1 3 5 -1 3 8 , it w ill be noted that said correc­

tion was likewise not made therein.



B rief  of  R espo nd en ts 3

ARGUMENT

There is but one real issue involved in this case and 

that is w h eth er  o r  n o t  the trial co u rt, that is, the District 

Court of Cleveland County, Oklahoma, erred in declining  

to issue a w rit  o f  m a n d a m u s, as prayed for by petitioner, 

to require the resp o n d en ts , Board of Regents of the U niver­

sity of Oklahoma, George L . Cross, Maurice H . Merrill, 

George W adsack and R-oy Gittinger, to  a d m it the p e t i ­

tioner, Ada Lois Sipucl, to  the S c h o o l o f  L a w  o f  the U n i -  

versity o f  O k la h o m a .

Before discussing the above issue respondents deem it 

advisable to call attention to 12 O .S . 1941 , Sec. 1451 , 

relating to the right o f issuance of a writ of mandamus 

in Oklahoma, the material part of which is as follow s:

“ T h e  w r it  o f  m a n d a m u s m a y  he issued b y  the  Su­
preme Court or the district co u rt, or any justice or 
judge thereof, during term, or at chambers, to any in­
ferior tribunal, corporation, board or person, to  c o m ­
p el the p erform a n ce o f  a n y  act w h ic h  the la w  specially  
en jo in s  as a d u ty , resu ltin g  fr o m  an office, tru st or  
s ta t io n ; * *

T h e Oklahom a Supreme Court, in construing the 

above language, held in the second paragraph of the sylla­

bus of P a y n e , C o u n t y  T rea su rer et al. V. S m ith , J u d g e, 

107 Okla. 165, 231 Pac. 4 6 9 , as follow s:
“ T o  sustain a petition for mandamus p etitio n er  

m u st s h o w  a legal righ t to  h a ve th e act d o n e  so u g h t  
b y  th e w rit , and also that it is plain legal d u ty  o f  the  
d efen d a n t to  p e r fo r m  the a ct.’ ’

In the case of S to n e  V. M ira cle, D is t . J u d g e, 196 Okla, 

42, 162 Pac. (2 d )  5 3 4 , the syllabus is as follow s:



4 Sip u e l  v. Board  of R eg en ts  e t  a l .

“ M andamus is a writ awarded to correct an abuse 
o f 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 w ould 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 L aw  of the University of Oklahom a when she, on Jan­

uary 14, 19 46 , “ duly applied for admission to the first 

year class” o f said school for the term beginning January 

15, 19 46 , she was by respondents:

“ * * * arbitrarily  refused admission” (Para. 1 of 
petitioner’s p e t.) .

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

A n d  that said refusal or rejection was:

“ * * * arbitrary and illegal”  (Para. 5 o f petitioner’s 
p e t .) .

Therefore, the real issue involved in this case is whether 

or not respondents, on January 14, 19 46 , arbitrarily and 
illegally rejected the application of petitioner for admission 

to the School of L aw  of the University o f Oklahoma. 

Said issue is summarized herein as follow s:

M andam us w ill 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 o f L aw  of the Univer-



B rief  of  R espo nd en ts 5

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

( 1 )  Applied, directly or indirectly to the O k la­
homa State Regents for Higher Education for them, 
under authority of Article 1 3 - A  of the Constitution  
of Oklahom a, to prescribe a school of law equal or 
“ substantially equal” to that of the University of 
Oklahom a as a part of the “ standards of higher 
education” a n d /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  
University, 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 follow ing propo­

sitions.

FIRST PROPOSITION
THE PETITIONER MAY NOT SECURE IN THIS  

PROCEEDING A RECONSIDERATION OF THE "SEPA­
RATE BUT EQUAL" DOCTRINE.

Rule 38 , Par: 2, o f this Court provides, concerning the 
petition for review on certiorari of a decision of a state 

court of last resort:
“ T he petition shall contain * * * ;  the question pre­

sented; and the reasons relied on for the allowance of 
the writ. O nly the questions specifically brought for­
ward by the petition for writ of certiorari w ill be 
considered.”

T h is rule expresses a long-standing practice of the 
Court, as is shown by the follow ing excerpts from its de­

cisions:



6 Sip u e l  v. B oard  of  R eg en ts  et  a l .

“ Defendant seeks reversal on a number of grounds 
that were not mentioned in his petition for the writ. 
But this Court is not called on to consider any ques­
tion not raised by the petition.”

G u n n in g  v. C o o l e y ,  281 U .S . 90 , 98 .

“ T h e A d k in s  case, unless distinguishable, requires 
affirmance of the judgment below. T h e petition for 
the writ sought review upon the ground that this case 
is distinguishable from that one. * * * T h is  Court 
confines itself to the ground upon which the writ was 
asked or granted.”

M o r e h e a d  e x  re/. N e w  Y o r k  V. T ip a ld o ,
2 9 8  U . S. 5 8 7 , 60 4 .

See also:
A lic e  S ta te B a n k  V. H o u s to n  P a stu re C o m ­

p a n y , 2 4 7  U .S . 2 4 0 , 2 4 2 ;
C o m m erc ia l C red it  C o .  V. U n ite d  States,

176 U .S . 2 2 6 , 2 2 9 ;
Steele  V. D r u m m o n d ,

27 5  U .S . 199, 2 0 3 .

In the instant case the reason relied on by petitioner 

for allowance o f the writ o f certiorari was,
“ T h e decision o f the Supreme Court of Oklahoma 

is inconsistent with and directly contrary to the de­
cision o f this Court in G a in es  V. C a n a d a ”  (Petition for 
certiorari, P. 6 ) .

T h e  decision in G a in es  V. C an ada  expressly recognized 

the constitutional propriety of the “ separate but equal” 

doctrine. 305  U .S . at 3 4 4 . Hence it is not open to the pe­

titioner to question that doctrine when the only reason 

advanced or relied on for the allowance of the writ was 

an alleged conflict with a decision which accepted and ap­

plied said doctrine.



B rief  of  R espo nd en ts 7

Respondents, therefore, will not attempt to answer 
here the second proposition discussed under the heading:

“ T h is Court Should Re-examine the Constitution­
ality o f the Doctrine o f ‘Separate But Equal’ Fa­
cilities,’ ’

on Pages 18 to 5 1 o f petitioner’s brief.

SECOND PROPOSITION
THE DECISION OF THE SUPREME COURT OF 

OKLAHOMA ACCORDS FULL RECOGNITION TO THE 
ASSERTED CONSTITUTIONAL RIGHT OF THE PETI­
TIONER TO HAVE PROVISION MADE FOR HER 
LEGAL EDUCATION W ITHIN THE STATE AND ES­
TABLISHES TH AT THE STATE OF OKLAHOMA HAS 
PROVIDED AN EFFECTIVE BASIS ON W HICH THE 
PETITIONER M AY 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 at 
an institution within its borders to likewise provide 
such education within the state to students belonging 
to other races, and that this right is available to any 
applicant of one of such other races who indicates an 
intention to accept such training.

T h e decision of the Oklahoma Supreme Court, as 

above outlined, is in accord with the basis upon which the 

decision in M isso u ri e x  rel. G a in es  V. C an ad a, 305  U .S . 

337 , rests (See “ Fourth Proposition” hereof). T h e  deci­

sion of the Supreme Court of Oklahoma recognizes this 

fully and repeatedly. “ T h a t it is the State’ s duty to fur­

nish equ al facilities to the races goes without saying”



8 Sip u e l  v. B oard  of R eg en ts  e t  a l .

(R . 3 8 ) .  “ Negro citizens have an equal right to receive 

their law school training within the State if they prefer 

it”  (R . 4 2 ) .  Said court expressly stated that it is the duty 

of the proper state authorities, upon proper notice or in­

formation “ to provide for her [petitioner] an opportunity 

for education in law at Langston or elsewhere in Okla­

hom a” (R . 4 5 ) .  “ T he reasoning and spirit of that deci­

sion [the G a in es  case], o f course, is applicable here, that 

is, that the State must provide either a proper legal train­

ing for petitioner in the State, or admit petitioner to the 

University L aw  School” (R . 4 7 ) .  T he opinion (R . 51) 

specifically holds that “ petitioner is fully entitled to educa­

tion in law with facilities equ al to those for white students, 
* * * *>

(b) The decision of the Supreme Court of Oklahoma 
establishes that the law of the State vests in the peti­
tioner a right to education in law within the State, at 
a public 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 (R . 4 2 )  that,

“ * * * the State Regents for Higher Education has 
undoubted authority to institute a law school for 
Negroes at Langston. It w ould be the duty of that 
board to so act, not only upon formal demand, but 
o n  a n y  definite in fo r m a tio n  that a member of that 
race was available for such instruction and desired the 
same.”

Said duty is summed up in the concluding portion of 

the opinion (R . 5 0 )  in the statement,



B rief  of  R espo nd en ts 9

“ * * * we are convinced that it is the m a n d a to ry  
d u ty  o f 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. T h a t board has full power, and as we con­
strue the law, the m a n d a to ry  d u ty  to provide a sepa­
rate law school for Negroes upon demand or sub­
stantial notice as to patronage therefor.’ ’

T h is  determination rests upon a substantial basis (as 

is shown by Paragraphs 1 to 5, below ) in the constitu­

tional and statutory law of O klahom a:

1. T h e  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 . 1 6 ) ,  on through the colleges and 
other institutions, 70 O .S . 1941 , Sections 4 5 5 , 4 5 6  
and 4 5 7  (R . 16 and 1 7 ) .

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 L ang­
ston University, to which colored students are ad­
mitted. 70 O .S . 1941 , Section 1451 (R . 1 8 ) .

3. T h e Oklahoma State Regents for Higher E d u­
cation is established as “ a co-ordinating board of con­
trol” for all institutions of higher education. A s 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.” O kla­
homa Constitution, Article 1 3 -A , Section 2 (See Pages 
23 and 24  hereof). T h is last function of recommend­
ing budget allocations is merely for the information  
o f the Legislature, since Section 3 of said article is as 
follow s:



10 Sip u e l  v. B oard  of R eg en ts  e t  a l .

“ T he appropriations made by the Legislature for 
all such institutions shall be made in consolidated 
form w ith o u t  reference to  a n y  particular institution  
and the Board of Regents herein created shall allo­
cate to each institution according to  its needs and 
fu n c tio n s

T h e m a n d a to r y  character o f the above quoted con­
stitutional provision was given effect by the Supreme 
Court of Oklahoma in the case of B o a rd  o f  Regents  
V. C h ild ers, S ta te A u d ito r  (July 9, 1 9 4 6 ) ,  197 Okla. 
3 5 0 , 170 Pac. (2 d )  10 18 , approximately one year 
prior to its decision in the case at bar. From these 
constitutional provisions it appears that the State Re­
gents for Higher Education, and not the governing 
board of each educational 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 pos­
sesses such power.

4. T h e Constitution of Oklahom a, Article 1, Sec­
tion 1, provides that “ the State o f Oklahoma is an 
inseparable part o f the Federal U nion, and the Con­
stitution o f the United States is the supreme law of 
the land.” T h e same constitution, in Article 15, Sec­
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 o f the State of O klahom a.” It is the 
established practice o f the courts of Oklahom a to con­
strue grants of power in such a way as to comply with 
constitutional requirements. E x  pa rte T in d a ll, 102 
Okla. 192 , 2 0 0 , 22 9  Pac. 125 , 1 3 2 ; In  re : A ssess­
m e n t o f  K a n sa s C i t y  S o u th ern  R a ilw a y  C o m p a n y ,  
168 Okla. 4 9 5 , 33 Pac. (2 d )  1 1 1 .  “ T h e statutes of



B rief  of  R espo nd en ts 11

Oklahom a are construed in connection with and in 
subordination to the Constitution of the United States 
* * * .”  O v e r to n  V. S ta te, 7 Okla. Cr. 2 0 3 , 2 0 5 , 114  
Pac. 1132 .

5. Fitting these constitutional and statutory pro­
visions and this established practice of construction 
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 Constitution of the United States, 
only by providing education in law within the State 
to such Negroes as request it, so long as such instruc­
tion is afforded to whites, it was clearly proper for 
the Oklahoma Supreme Court to hold that the State 
Regents are under a m a n d a to ry  d u ty  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 was merely 
a compliance with the command of the State’s highest 
law that the Constitution of the United States shall 
be obeyed. It was an adherence to the sound doctrine 
expressed by the Supreme Court of Missouri in State  
e x  rel. B lu fo r d  v . C an ada  ( 1 9 4 1 ) ,  34 8  M o . 2 9 8 , 
3 0 9 , 153 S .W . (2 d )  12, 17 :

“ It is the duty of this court to maintain M is­
souri’s policy of segregation so long as it does not 
come in conflict with the Federal Constitution. It 
is also our duty to follow  the interpretation placed 
on the Federal Constitution by the Supreme Court 
of the United States.”

It was but giving effect to the principle enunciated by  
this Court in A m erica n  P o w e r  and L ig h t  C o m p a n y  V. 
Securities and E x c h a n g e  C o m m is s io n , 329  U .S . 9 0 :

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

Counsel for the petitioner are hardly in a position to 
assail as unreasonable (Pet. B. 14 ) a statement of the law  
with which they concurred, when they said in their brief



12 Sip u e l  v. B oard  of R eg en ts  et  a l .

in the Supreme Court o f Oklahoma, as quoted in the opin­

ion (R . 49  and 5 0 )  o f said Court:

“ T h e Constitution and laws of the United States 
and the State o f Oklahoma require that equal facilities 
be afforded all citizens o f the State. T h e  d u ty  of 
m a k in g  such  equ al p r o v is io n s  w a s delegated to  the 
B o a rd  o f  R e g e n ts  o f  H ig h e r  E d u ca tio n . T h is  duty is 
incumbent upon the Board by virtue of their office.”

T h is 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 m andatory  

d u ty  o f the State Regents for Higher Education under the 

State law.

T a m p a  W a te r  W o r k s  C o m p a n y  V. T a m p a , 
199 U .S . 2 4 1 , 2 4 4 ;

D o u g la s  V. N e w  Y o r k ,  N e w  H a v e n  and H art­
fo r d  R a ilroa d  C o m p a n y ,  27 9  U .S . 377, 
3 8 6 ;

A tc h is o n , T o p e k a  an d Santa F e  Railroad  
C o m p a n y  v. R a ilroa d  C o m m is s io n  o f  Cali­
fo rn ia , 283  U .S . 38 0 , 3 9 0 ;

S en n  V. T ile  L a ye r s  P r o tec tiv e  U n io n ,
301 U .S . 4 6 8 , 4 7 7 ;

U n ite d  States  V. T e x a s ,  3 1 4  U .S . 4 8 0 , 487;
A lle n -B r a d le y  L o c a l  V. W isc o n s in  E m p lo y ­

m e n t R ela tio n s  B o a rd , 315  U .S . 740 , 746.

T h is Court, as held in Q u o n g  H a m  W a h  C o .  V. In ­

du stria l A c c id en t C o m m is s io n , 235  U .S . 4 4 5 , 4 4 9 , will 

not accept an argument which

“ * * * but disputes the correctness of the construction 
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, i f  the meaning



B rief  of R espo nd en ts 13

a ffixed  to  the sta tu te  b y  th e co u rt b e lo w  be accepted, 
every basis for such contended discrimination dis­
appears.”

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

T h e 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.

P le ssy  V. F erg u so n , 163 U .S . 53 7 , 5 4 4 ;
C u m m in g  V. C o u n t y  B o a rd  o f  E d u ca tio n  o f  

R ic h m o n d  C o u n t y ,  175 U .S . 5 2 8 ;
B erea C o lle g e  V. K e n tu c k y , 211 U .S . 45 , 5 5 ; 
G o n g  L u m  v. R ice, 27 5  U .S . 78.

In M iss o u r i e x  rel. G a in es  V. C an ad a, 305  U .S . 3 3 7 , 

344, this Court reaffirmed this principle, stating it as “ the 

obligation of the state to provide Negroes with advantages 

for Higher Education su b sta n tia lly  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.” T h e  

petitioner’s counsel take their stand upon the proposition 

that ‘ ‘T h e decision of the Supreme Court of Oklahom a is 

inconsistent with and directly contrary to the decision of 

this Court in G a in es  V. C a n a d a ”  (Pet. for cert. 6 ) .  But 

the distinctions between the legal and factual situation pre­

sented in the G a in es case and that presented in this case are 

significant and controlling under the very doctrine to which 

the petitioner appeals.



14 Sip u e l  v. Board  o f  R eg en ts  e t  a l .

Said distinctions, as will hereinafter be shown, have 

been accurately apprehended and correctly applied by the 

Supreme Court o f Oklahoma.

1. T h e basic ground of the decision in the Gaines 
case is stated thus by M r. Chief Justice Hughes:

“ B y 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 refu sed  it there and m u st  g o  ou tsid e the 
S ta te  to  o b ta in  i t .”  305  U .S . at 34 9 .

2. Subsidiary to this main proposition, the opin­
ion in the G a in es case points out that under the de­
cision o f 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. 
30 5  U .S . at 34 6  and 3 4 7 . T he decision herein of 
the Supreme Court of Oklahom a expressly declares 
(R . 4 2 )  that:

“ T h e State Regents for Higher Education has 
undoubted authority to institute a law school for 
Negroes at Langston. I t  w o u ld  be the d u ty  o f  that 
b oa rd  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 G a in es 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:

“ W e  must regard the question whether the pro­
vision for the legal education in o th e r  states of Ne-



B rief  of  R espo nd en ts 15

groes resident in Missouri is sufficient to satisfy the 
constitutional requirement o f equal protection, as 
the p iv o t  u p o n  w h ic h  this case t u r n s / ’ 305  U .S . 
at 34 8 .

T h e decision o f the Supreme Court of Oklahoma ex­
pressly recognizes that the provision in the Oklahoma  
law for the payment of tuition in out-of-state schools 
“ does not necessarily discharge the State’s duty to its 
Negro citizen” (R . 4 2 ) ,  and recognizes his right to 
education within the State.

4. In the G a in es case (3 0 5  U . S., Pages 3 5 1 , 3 5 2 ) ,  
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 ab- 
cense

“ may nevertheless c o n tin u e  fo r  an in d efin ite  
p eriod  by reason of the discretion given to the cura­
tors of Lincoln University and the alternative of 
arranging for tuition in other states, as permitted 
by the state law as construed by the state court, 
so  lo n g  as the cu rators fin d  it unnecessary and im ­
practicable  to provide facilities for the legal instruc­
tion of Negroes within the state.

“ In that view, we cannot regard the discrimina­
tion as excused by what is , called its te m p o ra ry  
character

T h is language implies that a state is not required to 
maintain in its institution for Negroes a duplication 
of all departments existing in its institution for 
whites, regardless of whether students present them­
selves for training therein.

T h e decision of the Supreme Court o f Oklahom a  

specifically points out that “ authority already exists”  

(R . 4 4 )  for the establishment of a separate law school 

within the State, and that, contrary to the situation in



16 Sip u e l  v. B oard  of R eg en ts  et  a l .

the G a in es case, “ it is the m a n d a to r y  d u t y ’ ’ of the State 

Regents for Higher Education “ to provide a separate law 

school for Negroes upon demand or substantial notice as 

to patronage therefor” (R . 5 0 ) .  Hence, the possibility 

of indefinite continuance of discrimination, upon which 

the G a in es  decision turned, does not exist in Oklahoma.

5. T h e petitioner’s counsel make much of an al­
leged misstatement by the Supreme Court of Okla­
homa that Gaines had demanded, unsuccessfully, train­
ing in law from Lincoln University (Pet. Brief, pp. 
17, 1 8 ) .  Read in the entire context, as we demon­
strated in our brief in response to the petition for cer­
tiorari (P . 1 4 ) ,  the Supreme Court of Oklahoma 
treated the communication from Gaines to Lincoln 
University merely as giving the Lincoln authorities 
notice that “ there existed a need and at least one patron 
for a law school for Negroes” (R . 4 6 ) ,  a condition 
which petitioner’s conduct thus far has prevented from 
arising in this case. There is no foundation for the 
assertion (Pet. Brief, P. 1 7 ) , that this shows that 
“ the Supreme Court o f Oklahom a completely ignored 
the opinion of this Court in the G a in es case.’ ’

THIRD PROPOSITION
THE PETITIONER HAS FAILED TO SEEK RELIEF 

FROM OR AGAINST THE OFFICIALS WHO M AY PRO­
VIDE IT UNDER THE LAW OF OKLAHOMA.

A s the analysis herein of Article 13a of the Oklahoma 

Constitution already has demonstrated, the State Regents 

for Higher Education have full control over the functions, 

the courses o f study and the budgets of the several Okla­

homa institutions of higher education. (See pertinent pro­

visions of said Article 13a on Pages 23 and 24  of this



B rief  of R espo nd en ts 17

brief). T he Board of Regents of the University of O kla­

homa and its administrative authorities have no power 

to alter its functions from those of an institution for the 

education of w h ite  stu d en ts  to those of an institution for 

the education of w h ite  and co lored  stu d en ts.

T h e authority to prescribe functions rests in the State 

Regents. T h ey  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 tw o races in accordance with the State’s policy, and 

what budgetary adjustments must be made for that pur­

pose. If they find this to be impossible, they might elect 

to comply with the Constitution o f 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 o f the U n i­

versity of Oklahoma, from w hom  and against w hom  the 

petitioner should seek relief. T h is case, therefore, comes 

under the rule enunciated and applied in C o p p e r w e ld  Steel  

C o m p a n y  V. In d u stria l C o m m is s io n  o f  O h io , 3 2 4  U . S. 

780, 78 5 , wherein this Court held:

“ T h e question o f the propriety o f taking the appeal 
need not be decided, in the view we take o f the basis 
of the state court’s judgment. Inasmuch as we con­
clude that decision was grounded upon the view that 
the appellant had n o t  p u rsu ed  the rem ed y  a fford ed  b y  
S ta te  la w  fo r  the v in d ica tion  o f  a n y  co n stitu tio n a l  
rig h t it cla im ed  w a s v io la ted , we must dismiss the ap­
peal and deny certiorari.”



18 Sip u e l  v. Board  of R eg en ts  e t  a l .

See also, as to the need for pursuing State adminis­

trative remedies before resorting to judicial action:

P ren tis  V. A tla n tic  C o a s t  L in e  C o m p a n y ,
' 211 U .S . 2 1 0 , 2 3 0 ;

L a w ren c e  V. S t. L o u is -S a n  F ran cisco R a ilw a y  
C o m p a n y ,  2 7 4  U .S . 5 8 8 , 5 9 2 ;

S t. L o u is -S a n  Francisco R a ilw a y  C o m p a n y  v. 
A la b a m a  P u b lic  Service C o m m iss io n ,
2 7 0  U .S . 5 6 0 , 56 3 .

T h e  decision of the Supreme Court o f Oklahoma ex­

pressly holds and determines:

( 1 )  T h a t 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 )  T h a t such education must be furnished on a 
basis o f equality o f facilities, but, under the established 
law and policy of the State, in a separate institution:

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

( 4 )  T h a t the duty o f the State Regents to provide 
the petitioner with legal training on a basis of equality 
with that afforded to white students is m a n d a to ry  and 
not discretionary:

( 5 )  T h a t 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 
o f training in law at a separate la w  s c h o o l ; and

( 6 )  T h a t the State Regents are the only State offi­
cers that have at their command the State’s revenue 
provided for purposes of higher education.



B rief  of R espo nd en ts 19

On the basis o f this analysis of the pertinent law, the 

petitioner’s road to secure a legal education within O kla­

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 with 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.

T h e petitioner could have set this machinery in m o­

tion on April 29 , 19 47 , when the opinion o f the Supreme 

Court o f Oklahom a was filed. T he constitutional and 

statutory provisions upon which the decision rests were in 

existence at all times, and certainly her attention was called 

to the respondents’ contention respecting their interpreta­

tion as early as the filing of respondents’ answer in the 

District Court o f Cleveland County, Oklahoma, on M ay  

14, 1946 . T h u s, at any time since then, she might have 

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 L aw  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 dow n the State’s policy of segregated education, 

not in securing provision for legal training in accordance



20 Sip u e l  v. Board  of R eg en ts  et  a l .

therewith. T h is conduct fully justifies the comment (R. 

4 7 )  o f the Supreme Court o f O klahom a:

“ T h e effect of her actions was to withhold or re­
frain from giving to the proper officials, the right or 
option or opportunity to provide separate education 
in law for her * *

T h is  attitude, so manifested and continued, gives no 

assurance that petitioner w ould accept legal training in a 

separate law school. For all resulting delay, the petitioner 

alone is responsible.

FOURTH PROPOSITION
THE CASE OF STATE OF MISSOURI EX REL. 

GAINES v. CANADA (1939), 305 U.S. 337, 83 L.ed.
208, RELIED ON BY PETITIONERS HEREIN, WHEN 
PROPERLY CONSTRUED, SUPPORTS THE DECISION 
OF THE SUPREME COURT OF OKLAHOMA IN THE 
CASE AT BAR.

In the above case this Court recognized the validity, 

under the Fourteenth Amendment o f the Constitution of 

the United States, of racial segregation in education pro­

vided all races are afforded equal or substantially equal 

educational facilities, and in this connection stated:

“ * * * the state court [Supreme Court of Missouri] 
has fully recognized the obligation of the State to 
p r o v id e  n eg roes w ith  a d va n ta ges fo r  h igh er educa­
tio n  su b sta n tia lly  equ al to  the a d va n ta ges afforded  
to  w h ite  stu d en ts . T h e  State has sought to fulfill 
that obligation b y  fu rn ish in g  equ al facilities in sep­
arate sch ols, a m e th o d  the v a lid ity  o f  w h ic h  has been 
su sta in ed  b y  o u r  decisions. P le ssy  V. F erg u so n , 163 
U . S. 5 3 7 , 5 4 4 , 41 L . ed. 2 5 6 , 2 5 8 , 16 S. Ct. 
1 1 3 8 ; M c C a b e  V. A tc h is o n , T .  &  S. F . R . C o . ,  235



B rief  of R espo nd en ts 2 1

U .S . 151, 160, 59 L.ed. 169, 173, 35 S. Ct. 6 9 ; 
G o n g  L u m  v. R ice , 27 5  U .S . 78, 86 , 88, 72 L.ed. 172, 
176, 177, 4 8  S. C t. 91 . * * * the fact remains that 
instruction in law for negroes is not now afforded by  
the State, either at Lincoln University or elsewhere 
within the State, and that the State excludes negroes 
from the advantages of the law school it has estab­
lished at the University of Missouri.

“ It is manifest that this discrimination, if  n o t re­
lieved  b y  th e p ro v isio n s  w e  shall p resen tly  discuss, 
w ould constitute a denial of equal protection.”

T h is Court then proceeded to call attention to the tw o  

provisions o f the Missouri law relied upon by the Supreme 

Court o f that state as grounds justifying its decision deny­

ing the petitioner, Gaines, the writ o f mandamus prayed 

for by him to require his admission to the School of L aw  

of the University o f Missouri, said grounds being stated 

by this Court, as follow s:

“ ( 1 )  that in Missouri, * * * there is ‘a legislative 
declaration o f a purpose to establish a law school for 
negroes at Lincoln University whenever necessary or 
practical;’ and

“ ( 2 )  that, ‘pending the establishment o f such a 
school, adequate provision has been made for the legal 
education o f negro students in recognized schools out­
side o f this State.’ ”

In relation to said secon d  g ro u n d , this Court held 

that the provisions of the Missouri law, offering negro 

students educational facilities at state expense in a school 

of law of another state while offering similar facilities at 

state expense to white students in a school of law located 

in Missouri, did not give such negro students “ equal pro-



22 Sip u e l  v. Board  o f  R eg en ts  e t  a l .

tection of the law ” within the meaning of the Fourteenth 

Amendment.

In relation to the first g ro u n d , however, this Court 

stated:

‘ ‘A s to the first g ro u n d , it appears that the policy 
of establishing a law school at Lincoln University has 
not yet ripened into an actual establishment, and it 
cannot be said that a m ere declaration o f  p u rp o se , still 
unfulfilled, is enough. T h e  provision for legal edu­
cation at Lincoln is at present entirely lacking. R e­
s p o n d e n t ’ s cou n sel urge  that if, on the date when pe­
titioner applied for admission to the University of 
Missouri, he had instead applied to the curators of 
Lincoln University it w o u ld  h a ve been  their d u ty  to 
esta blish  a la w  s c h o o l ;  that this ‘agency o f the State,’ 
to which he should have applied, was ‘specifically 
charged w ith  the m a n d a to r y  d u ty  to furnish him what 
he seeks.’ W e  do not read the opinion o f the Supreme 
Court as construing the state statute to impose such 
a ‘m a n d a to r y  d u t y ’ as the argument seems to assert. 
T h e state court quoted the language o f § 9 6 1 8 , Mo. 
Rev. Stat. 19 29 , set forth in the margin, making it 
the m a n d a to r y  d u ty  of the board of curators to es­
tablish a law school in Lincoln University ‘w henever  
necessary and practicable in their o p in io n .’ T h is quali­
fication o f their duty, explicitly stated in the statute, 
manifestly leaves it to  th e ju d g m e n t  o f  the curators 
to  decide w h e n  it w ill be necessary and practicable to 
establish  a la w  sc h o o l, an d the state co u rt so  construed  
th e sta tu te . * * *

“ T h e  S ta te  co u rt has n o t  held  that it w o u ld  have 
been th e d u ty  o f  the cu rators to  establish  a la w  school 
at L in c o ln  U n iv e r s ity  fo r  the p etitio n er  o n  his appli­
ca tion . Their duty, as the court defined it, would have 
been either to supply a law school at Lincoln Uni­
versity as provided in § 9 6 1 8  or to furnish him the 
opportunity to obtain his legal training in another 
State as provided in § 9 6 2 2 . T h u s  the la w  left the 
cu rators free to  a d o p t the latter course. * * * In the



B rief  of R espo nd en ts 23

light of this ruling we must regard the question 
whether the provision for the legal education in other 
states o f negroes resident in Missouri is sufficient to 
satisfy the constitutional requirements o f equal pro­
tection, as the p iv o t  u p o n  w h ic h  this case tu r n s .”

T h e above quoted language indicates this Court was 

of the opinion that if the Missouri law referred to therein 

had made it the m a n d a to r y  d u ty  of the curators of Lincoln  

University, upon a proper application therefor, to establish 

a law school in connection with said University at which 

the petitioner, Gaines, could attend, he w ould not have 

been entitled to a writ o f mandamus to attend the law  

school o f the University o f Missouri, that is, unless and 

until he had applied to said curators to establish such a 

school and his application had been denied.

Said quoted language was, in effect, so construed in 

the follow ing cases:

1. T h e  second decision of the Supreme Court of M is­
souri in the G a in es case, supra, 131 S .W . (2 d )  2 1 7 ,

2. S ta te e x  rel. B lu fo r d  V. C an ada, 153 S .W . (2 d )  12 
(R . 4 8 ) ,

3. B lu fo r d  V. C a n a d a , 32  Fed. Supp. 70 7 , appeal 
dismissed 119 Fed. (2 d )  799  (R . 39 , 4 0 , 41 and 
4 8 ) ,

4 . M ich a el et al. v . W ith a m  et al., 165 S .W . (2 d )  37 8  
(R . 4 7 ) ,  and

5. T h e  decision of the Supreme Court o f Oklahom a  
in the case at bar (R . 35 to 5 1 ) .

In this connection it will be noted that in the case 

last above cited the Supreme Court of Oklahom a construed 

Article 1 3 - A  o f the Constitution o f Oklahom a (adopted



24 Sip u e l  v. Board  of  R eg en ts  e t  a l .

in 1 9 4 1 ) ,  creating the Oklahom a State Regents for Higher

Education and providing in part that,
*  *  *

“ T he Regents shall constitute a co-ordinating board 
o f control for all State institutions described in Sec­
tion 1 hereof, with the follow ing specific powers:

“ ( 1 )  it shall prescribe standards of higher educa­
tion applicable to each institution;

“ ( 2 )  it shall determine the functions and courses 
of study in each of the institutions to conform to 
the standards prescribed;

“ ( 3 )  it shalL grant degrees and other forms of 
academic recognition for completion of the pre­
scribed courses in all o f 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 of such institutions, 
and any such fees shall be effective only within the 
limits prescribed by the Legislature.

“ 3. T h e appropriations made by the Legislature for 
all such institutions shall be made in consolidated form 
w ithout reference to any particular institution and the 
Board of Regents herein created shall allocate to each 
institution according to its needs and functions.”

and held (R . 4 2 )  that under said Article 1 3 - A :

“ T h e State Regents for Higher Education has un­
d o u b te d  a u th o r ity  to institute a law school for negroes 
at Langston. It w ould be the d u ty  of that board to 
so act, not only upon formal demand, but on any 
definite information that a member o f that race was 
available for such instruction and desired the same.”

T h e  Supreme Court o f Oklahom a further held (R.

5 0 )  that said Article 1 3 - A ,  when construed in connection



B rief  of R espo nd en ts 2 5

with other cited constitutional and statutory provisions 

of Oklahom a establishing a state p o lic y  to  segregate  the 

white and negro races “ for the purpose of education in 

* * * institutions o f higher education” of Oklahoma and 

in the light o f said Fourteenth Amendment, made it

“ * * * the m a n d a to r y  d u ty  o f 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. T h a t board 
has full power, and as we construe the law, the m a n ­
d a to r y  d u ty  to provide a separate law school for ne­
groes upon demand or substantial notice as to patron­
age therefor.”

It, therefore, appears that under the above construc­

tion of the pertinent constitutional and statutory provi­

sions o f  the State of Oklahom a b y  the h igh est co u rt th ereof  

and the principles of law heretofore quoted from the G a in es  

case, supra , and since there is nothing in the record o f the 

case at bar which even indicates:

(a ) T h a t the petitioner herein or any other quali­
fied negro (or any person whatsoever) has ever ap­
plied to said Regents for Higher Education to establish 
a school o f law for negroes in Oklahom a, or,

(b ) T h a t said petitioner or any other qualified ne­
gro w ould attend such a school if established,

the writ o f mandamus prayed for by petitioner herein

should be denied.

In reaching the above conclusion that "the writ o f  

mandamus prayed for by petitioner should be denied,” re­

sp o n d e n ts  assu m e th a t:



26 Sip u e l  v. B oard  of R eg en ts  e t  a l .

1. A  method adopted by a State

“ * * * to provide negroes with advantages for 
higher education substantially equal to the advantages 
afforded to white students * * * by furnishing equal 
facilities in separate schools,”

o f the state, which method this Court stated in the Gaines 

case was,

“ *  *  *  a method the validity of which has been 
sustained by our decisions,’

w ill still be sustained by this Court, and

2. T h is Court w ill not take the position that in order 

for such a method o f equal education in separate schools 

of a state to be valid under the Fourteenth Amendment, 

the state, if it establishes and maintains, for example (as 

here), a law school therein for the members of one race, 

must at the same time establish and maintain a law school 

therein for members o f the other race, ev en  th o u g h  no 

m e m b e r  o f  said o th e r  race ev er  ap plies, o r  is eligible to 

a p p ly , fo r  a d m ission  th ereto .



B rief  of  R espo nd en ts 2 7

CONCLUSION

WHEREFORE, premises considered, respondents re­

spectfully ask this Court to affirm the decision of the Su 

preme Court o f Oklahoma herein.

Respectfully submitted,

M ac Q. W illiamson,
Attorney General of Oklahoma,

Fred Hansen,
First Assistant Attorney General. 
State Capitol,
Oklahom a City, Oklahoma,

M aurice H. M errill,
John B. Cheadle,
N orm an, Oklahoma,
A t t o r n e y s  fo r  R e sp o n d e n ts .

December, 19 47 .









IN THE

A da L ois Sipuel F isher,
Petitioner,

v-
The H onorable T hurman S. H urst, Chief 

J ustice; T he H onorable D enver N.
Davison, V ice Chief Justice ; T he 
H onorable F letcher R iley, W ayne I 
W. Bayless, E arl W elch, N. S. Corn, \
Ben A rnold, T homas L. Gibson, and /
John L uttrell, A ssociate Justices of 1 
the Supreme Court of the State of I 
Oklahoma ; T he H onorable Justin 
H inshaw , D istrict Judge Cleveland 
County D istrict Court of Oklahoma 
and the B oard of Regents of the U ni­
versity of Oklahoma.

Supreme (Hiutrt of thr United States
October Term, 1947

N o . ........ , Miscellaneous

MOTION FOR LEAVE TO FILE PETITION FOR 
WRIT OF MANDAMUS, PETITION AND BRIEF 

IN SUPPORT THEREOF.

T hurgood M arshall,
A mos T. H all,

Attorneys for Petitioner.
W illiam H. H astie,
Edward R. D udley,
Marian W ynn  P erry,

Of Counsel.





I N D E X

PAGE

Motion for Leave to File Petition for Writ of Mandamus 1

P etition_____________________________________________  3

Brief in Support of Motion and Petition ____________  13

Argument:
I—The Supreme Court of Oklahoma and the Dis­

trict Court of Cleveland County have violated 
the mandate of this C ourt__________________  14

II—Mandamus is the appropriate remedy in this 
ca se__________________________________________ 19
Mandamus Will Always Lie to Compel Obedi­

ence to a Mandate of This Court___________  19

Conclusion___________________________________________ 21

Exhibit A ___________________________________________ 23

Exhibit B ____________________________________________ 28

T able o f  Cases Cited

Ex Parte Sibbald, 12 U. S. 488 ______________________ 20
Ex Parte Texas, 315 U. S. 8 __________________________  20
Ex Parte Union Steamboat Co., 178 U. S. 317_________  20
Federal Communications Commission v. Pottsville, 309 

U. S. 134 ________________________________________ 20
In re Potts, 166 IT. S. 263 ___________________________  20
In re Sanford Fork and Tool Co., 160 U. S. 247 ______ 20
Missouri ex rel. Gaines v. Canada, 305 U. S. 337 ......_____ 16
U. S. v. Fossatt, 21 How. 445 ______________________ 19, 20



11

T able o f Authorities Cited
PAGE

American Teachers Association, The Black and White 
of Rejections for Military Service, August, 1944___  17

Ballantine, The Place in Legal Education of Evening & 
Correspondence Law Schools, 4 Am. Law School 
Rev. 369 (1918)_________________________________  16

Boyer, Smaller Law Schools: Factors Affecting Their 
Methods and Objectives, 20 Oregon Law Rev. 281 
(1941) ___________________________________________  16

Klineberg, Negro Intelligence and Selective Migration, 
New York, 1935 _________________________________  17

McCormick, The Place and Future of the State Uni­
versity Law School, 24 N. C. L. Rev. 441__________  17

Peterson & Lanier, “ Studies in the Comparative Abili­
ties of Whites and Negroes,”  Mental Measurement 
Monograph ______________________________________ 17

Simpson, The Function of a University Law School, 49 
Harv. L. Rev. 1068 ______________________________  17

Stone, The Public Influence of the Bar, 48 Harv. L.
Rev. 1 _________    17

Townes, Organisation and Operation of a Law School,
2 Am. Law School Rev. 436 (1910) _______________  16



IN THE

(Emtrt of th? Unitefc
October Term, 1947

No............ , Miscellaneous

A da L ois Sipuel F isheb,
Petitioner,

v.
T he H onorable T hurman S. H urst, Chief 

Justice; T he H onorable Denver N. 
Davison, V ice Chief Justice; T he 
H onorable F letcher R iley, W ayne 
W . B ayless, E arl W elch, N. S. Corn, 
B en A rnold, T homas L. Gibson, and 
John L uttrell, A ssociate Justices of 
the Supreme Court of the State of 
Oklahoma ; T he H onorable Justin 
H inshaw , D istrict Judge Cleveland 
County D istrict Court of Oklahoma 
and the B oard of Regents of the U n i­
versity of Oklahoma.

Motion for Leave to File Petition for 
Writ of Mandamus.

To the Honorable Fred M. Vinson, Chief Justice of the 
United States and Associate Justices of the Supreme 
Court of the United States:

Petitioner, Ada Lois Sipuel Fisher, moves the Court for 
leave to file the petition for a writ of mandamus hereto an­
nexed; and further moves that an order and rule be entered 
and issued directing the Honorable T hurman S. H urst, 
Chief Justice; the Honorable Denver N. Davison, Vice



2

Chief Justice; and the Honorable F letcher Riley, W ayne 
W. Bayless, Earl W elch, N. S. Corn, Ben A rnold, T homas 
L. Gibson and John Luttrell, Associate Justices of the 
Supreme Court of the State of Oklahoma; the Honorable 
Justin H inshaw, District Judge Cleveland County District 
Court of Oklahoma, and the Board of Regents of the Uni­
versity of Oklahoma, to show cause why a writ of mandamus 
should not be issued against them in accordance with the 
prayers of said petition and why your petitioner should not 
have such other and further relief in the premises as may 
be just and meet.

T hurgood Marshall,
A mos T. H all,

Attorneys for Petitioner.

W illiam H. H astie,
E dward R. Dudley,
Marian W ynn Perry,

Of Counsel.

January, 1948.



IN THE

Supreme Court of thr lilnitrii States
October Term, 1947

No. , Miscellaneous

A da Lois Sipuel F isher,
Petitioner,

v-
T he H onorable T hurman S. Hurst, Chief 

Justice; The H onorable Denver N. 
Davison, V ice Chief Justice; T he 
H onorable F letcher Riley, W ayne 
W. Bayless, E arl W elch, N. S. Corn, 
Ben A rnold, T homas L. Gibson, and 
John Luttrell, A ssociate Justices of 
the Supreme Court of the State of 
Oklahoma; T he H onorable Justin 
H inshaw, District Judge Cleveland 
County District Court of Oklahoma 
and the Board of Regents of the U ni­
versity of Oklahoma.

Petition for a Writ of Mandamus.

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

The petition of Ada Lois Sipuel Fisher respectfully 
shows that:

I.

Petitioner, Ada Lois Sipuel Fisher, was petitioner in . 
the case of Ada Lois Sipuel v. Board of Regents of the Uni-

3



4

versity of Oklahoma, et al., No. 369-October Term-1947, on 
writ of certiorari to the Supreme Court of the State of 
Oklahoma. Petitioner is a citizen of the United States and 
State of Oklahoma and is a resident of the State of Okla­
homa. The Hon. T hurman S. H urst, and the Hon. Denver 
N. Davison are respectively the duly elected, qualified and 
acting Chief Justice and Vice Chief Justice of the Supreme 
Court of the State of Oklahoma; the Hon. F letcher Riley, 
W ayne W. Bayless, E arl W elch, N. S. Corn, Ben A rnold, 
T homas L. Gibson and John Luttrell are the duly elected, 
qualified and acting Associate Justices of the Supreme 
Court of the State of Oklahoma; the Hon. Justin H inshaw 
is the duly qualified District Judge of the Cleveland County 
District Court of Oklahoma; the Board of Regents of the 
University of Oklahoma is an administrative agency of the 
State and exercises overall authority with reference to the 
regulation of instruction and admission of students in the 
University, a corporation organized as a part of the educa­
tional system of the state and maintained by appropria­
tions from the public funds of the State of Oklahoma.

II.

The purpose of this petition is to obtain from this Hon­
orable Court, under authority of Section 262 of the Judicial 
Code (28 U. S. C. 377) and Section 234 of the Judicial Code 
(28 U. S. C. 342) a writ of mandamus in the nature of pro­
cedendo to compel compliance with and to prevent the re­
fusal to abide by the opinion and judgment of this Honor­
able Court entered on January 12, 1948, on which mandate 
was issued forthwith in No. 369-October Term, 1947, en­
titled Ada Lois Sipuel v. Board of Regents of the Univer­
sity of Oklahoma, et al. Petitioner herein was the peti­
tioner in said case.



5

As appears from the record of this Honorable Court, 
Case No. 369, October Term, 1947, entitled Ada Lois Sipuel 
v. Board of Regents of University of Oklahoma, et al., was 
argued before this Honorable Court on January 8, 1948 and 
was decided on January 12, 1948, in a Per Curiam opinion 
which summarized the nature and history of the litigation 
as follows:

III.

“ On January 14, 1946, the petitioner, a Negro, 
concededly qualified to receive the professional legal 
education offered by the State, applied for admission 
to the School of Law of the University of Oklahoma, 
the only institution for legal education supported and 
maintained by the taxpayers of the State of Okla­
homa. Petitioner’s application for admission was 
denied, solely because of her color.

Petitioner then made application for a writ of 
mandamus in the District Court of Cleveland County, 
Oklahoma. The writ of mandamus was refused, and 
the Supreme Court of the State of Oklahoma affirmed 
the judgment of the District Court. „ - Okla. , 
180 P. 2d 135. We brought the case here for review.”

In these circumstances this Court in its aforesaid Per 
Curiam opinion expressly stated and directed that the State 
of Oklahoma must provide for the petitioner legal education 
afforded by a state institution in conformity with the equal 
protection clause of the Fourteenth Amendment “ and pro­
vide it as soon as it does for applicants of any other group.”  
The cause was remanded and the mandate of this Court 
was issued forthwith to the Supreme Court of Oklahoma 
for proceedings not inconsistent with this opinion.



6

The requirement of this Court that the State of Okla­
homa act on behalf of petitioner as soon as it does for 
applicants of any other group was in fact and plainly a 
material part of the judgment of this Court. The case was 
argued on January 8 , 1948. During argument counsel for 
respondents stated in open court that white students now 
applying to enter the law school of the University of Okla­
homa would be admitted on a day certain during this month 
of January, 1948. This Court rendered its opinion four 
days after argument and ordered that the mandate issue 
forthwith. It was the plain intendment of this Court and 
requirement of its decree that the State discharge its obli­
gation to petitioner at a time not later than the opening of 
the new law school term at the University of Oklahoma in 
January, 1948.

IV.

V.

The Law School of the University of Oklahoma is now 
inviting white persons qualified to enter upon the study of 
law to register for such instruction January 26, 1948, and 
to begin the course of legal instruction at said University 
on January 29, 1948. VI.

VI.

Upon receipt of the mandate of this Honorable Court, 
the Supreme Court of Oklahoma considered the effect to be 
given to the said mandate, added the Oklahoma State 
Regents for Higher Education as a party to the litigation, 
on January 17, 1948, entered an order purporting to be con­
sistent with the mandate of this Court and sent its mandate



to the District Court of Cleveland County, Oklahoma. The 
petitioner had no opportunity to be heard in connection 
with any of these proceedings. The order of the Supreme 
Court of Oklahoma as issued January 17, 1948 provides:

‘ ‘ Said Board of Regents is hereby directed, under 
the authority conferred upon it by the provisions of 
Art. 13-A, Constitution of the State of Oklahoma, and 
Title 70 O. S. 1941, Secs. 1976,1979, to afford to plain­
tiff, and all others similarly situated, an opportunity 
to commence the study of law at a state institution 
as soon as citizens of other groups are afforded such 
opportunity, in conformity with the equal protection 
clause of the Fourteenth Amendment of the Federal 
Constitution and with the provisions of the Consti­
tution and statutes of this state requiring segregation 
of the races in the schools of this state. Art. 13, Sec. 
3, Constitution of Oklahoma; 70 0. S. 1941, Secs. 451- 
457.”

The full text of the opinion of said Court is attached hereto 
as ‘ ‘ Exhibit A ”  and prayed to be read in full.

7

VII.

The aforesaid order of January 17, 1948, contains mu­
tually contradictory provisions which prevent the execution 
of a material part of the mandate of this Court. The afore­
said order expressly limits petitioner opportunity to study 
law by requiring that said study of law must be in con­
formity with ‘ ‘ the provisions of the constitution and stat­
utes of this state requiring segregation of the races in the 
schools of this state. Art. 13, Sec. 3, Constitution of Okla­
homa; 70 0. S. 1941, Secs. 451-457.”  Among the sections 
of the Oklahoma Statutes thus cited is Section 456 which 
makes it a misdemeanor to teach white and colored students 
in the same institution. The only state institution offering



8

a legal education now or at any time material to this liti­
gation is the University of Oklahoma, an institution at 
which white students only are now enrolled. The plain 
intendment and the legal effect of the aforesaid order is to 
make it a violation of the said order to admit petitioner 
to the school of law of the University of Oklahoma, the only 
state institution offering professional training in law.

VIII.

Counsel for the State of Oklahoma admitted in argument 
of Case No. 369 before this Court on January 8, 1948 that 
no steps had then been taken by the executive or adminis­
trative officers of Oklahoma to organize or establish a sepa­
rate school of law for Negroes. Petitioner asks that is 
Court take judicial notice that the State of Oklahoma can­
not by January 29, 1948 establish, organize and make avail­
able to the petitioner a separate school of law which in 
comparison to the law school of the University of Oklahoma 
as that school is described in the Record of this litigation 
(Record, Case No. 369, October Term, 1947, p. 23) would 
afford the petitioner the equal protection of the law as re­
quired by the mandate of this Court.

IX.

It follows that the Supreme Court of Oklahoma by its 
own order, purportedly pursuant to the mandate of this 
Court, has forbidden the only course of action which would 
provide for the petitioner “ a legal education afforded by a 
state institution . . .  as soon as it does for applicants of any 
other group”  as ordered by the mandate of this Court. Such 
action of the Supreme Court of Oklahoma is a refusal to 
abide by the clear mandate of this Court.



9

A mandate of the Supreme Court of Oklahoma incorpor­
ating the order of the Court hereinbefore set forth was 
issued forthwith to the District Court of Cleveland County, 
Oklahoma. That court, in turn, purporting to carry out 
the mandates of this Court and of the Supreme Court of 
Oklahoma, on January 22, 1948 issued an order which is 
inconsistent both with the mandate of this Court and the 
mandate of the Supreme Court of Oklahoma and expressly 
retained jurisdiction of the case. The said order of the 
trial court is attached hereto as “ Exhibit B ”  and prayed 
to be read in full.

X.

XI.

The aforesaid order of the trial court is inconsistent 
with the order of this Court in that it designates the estab­
lishment of a new and separate institution for the study of 
law as an available method of complying with the duty of 
the State in the premises and in that it designates as an 
acceptable alternative the denial to white students and to 
petitioner of the privilege of entering the School of Law of 
the University of Oklahoma at the normal time of matricu­
lation in January, 1948. The said order of the trial court 
insofar as it provides even conditionally for the admission 
of petitioner to the Law School of the University of 
Oklahoma is inconsistent with so much of the mandate of 
the Oklahoma Supreme Court as required that education be 
provided for petitioner only in conformity with the con­
stitutional and statutory requirements of Oklahoma regard­
ing segregation.



1 0

Neither before nor since the issuance of the orders of 
the state courts has petitioner been afforded the opportunity 
which this Court directed the State of Oklahoma to provide 
for her. The contradictory directions of the state courts 
purporting to carry out the mandate of this Court have not 
resulted in providing petitioner the relief to which she is 
entitled under the mandate of this Court, but have created 
such confusion and uncertainty with reference to the rights 
of the petitioner and the duties of the agencies of the state 
in connection therewith as to constitute a denial of the relief 
ordered by this Court.

XII.

XIII.

Petitioner will suffer irreparable and inestimable dam­
age by the judgments of the Supreme Court of Oklahoma 
and the District Court of Cleveland County, Oklahoma, for 
reasons set out above. The above-mentioned courts in re­
fusing to abide by the mandate of this Court and in retain­
ing jurisdiction of the case have left petitioner in the same 
position in relation to the enforcement of her rights by the 
Courts of Oklahoma as she was at the time the original 
action was filed.

W h e r e f o r e ,  the petitioner prays:

(1) That a writ of mandamus issue from the Court 
directing the Honorable T hurman S. H urst, Chief 
Justice; The Honorable Denver N. Davison, Vice 
Chief Justice; The Honorable Fletcher Riley, 
W ayne W . Bayless, Earl W elch, N. S. Corn, Ben



11

A rnold, T homas L. Gibson, and John Luttrell, 
Associate Justices of the Supreme Court of the 
State of Oklahoma, to issue an order to the District 
Court of Cleveland County, Oklahoma, requiring 
that Court to issue the writ of mandamus as prayed 
for in the original action, No. 369, October Term, 
1947.

(2) That a writ of mandamus issue from this Court 
directing the Honorable Justin H inshaw, Judge of 
the Cleveland County, Oklahoma, District Court, to 
issue the writ of mandamus as prayed for in the 
original action, No. 369, October Term, 1947.

(3) That a writ of mandamus issue from this Court 
directing the Board of Regents of the University 
of Oklahoma to admit petitioner forthwith as a reg­
ular first year student of the School of Law of the 
University of Oklahoma.

(4) That petitioner have such additional relief and 
process as may be necessary and appropriate in the 
premises.

Respectfully submitted,

T hurgood Marshall,
A mos T. Hall,

Attorneys for Petitioner.

W illiam H. H astie,
Marian W ynn Perry,
E dward R. Dudley,

Of Counsel.





Supreme (Eintrl nf thr lluxtvh States
October Term, 1947 

N o . ......... , Miscellaneous

A da Lois Sipuel F isher,
Petitioner,

v.
T he H onorable T hurman S. H urst, Chief 

Justice; The H onorable Denver N. 
Davison, V ice Chief Justice; T he 
H onorable Fletcher Riley, W ayne 
W . Bayless, E arl W elch, N. S. Corn, 
Ben A rnold, T homas L. Gibson, and 
John Luttrell, A ssociate Justices of 
the Supreme Court of the State of 
Oklahoma; T he Honorable Justin 
H inshaw, District Judge Cleveland 
County District Court of Oklahoma 
and the Board of Regents of the Uni­
versity of Oklahoma.

BRIEF IN SUPPORT OF MOTION AND PETITION.

The history of the case and the nature of the action 
taken by the Supreme Court of Oklahoma and the District 
Court of Cleveland County are set out in the petition for 
a writ of mandamus and will not be repeated here.

In this brief we shall discuss, first, the respects in which 
the action taken by the Supreme Court of Oklahoma and 
the District Court of Cleveland County are inconsistent 
with the mandate of this Court and the resulting injury 
to petitioner, and, second, the propriety of mandamus as 
the remedy in this case.

13



14

I.

The Supreme Court of Oklahoma and the District 
Court of Cleveland County have violated the mandate 
of this Court.

The action taken by the Supreme Court of Oklahoma 
and the District Court have violated the mandate of this 
Court in the following respects: (a) under the opinion and 
mandate of this Court, the only act remaining to be done 
by the Supreme Court of Oklahoma was the issuance of an 
order to the District Court of Cleveland County directing it, 
in turn, to issue the writ prayed for in the original peti­
tion; (b) the opinion and mandate of this Court required 
that the relief sought by petitioner be granted forthwith 
without any reconsideration of the segregation statutes 
previously relied on by the state; (c) the action taken by 
the Supreme Court of Oklahoma and the District Court 
denies petitioner a legal education now as required by the 
mandate of this Court.

On January 14, 1946, this petitioner made application to 
the University of Oklahoma for admission to the School 
of Law. It was the only school maintained by the tax­
payers of Oklahoma for the legal education of its citizens. 
Petitioner’s qualifications were admitted and have never 
been disputed. Her application was denied solely on the 
grounds of her race and color, in violation of the equal 
protection clause of the Fourteenth Amendment to the 
Federal Constitution.

Petitioner then applied to the District Court of Cleve­
land County, Oklahoma, for a writ of mandamus compelling 
the Board of Regents to admit her to the only law school 
maintained by the state. That court denied her the writ 
on the ground that such a writ would not issue since it



15

would compel these state officials to violate the segregation 
statutes of that state which carried a criminal penalty for 
non-compliance. The Supreme Court of Oklahoma affirmed 
this denial of the writ on this same ground. This Court on 
January 12, 1948, reversed the holding of the lower court 
and issued its mandate “ forthwith.”

Under the mandate of this Court petitioner was entitled 
to an order directing that she be admitted to the Univer­
sity of Oklahoma Law School for the term commencing 
January 29, 1948.

At the time of the decisions and orders of both the Su­
preme Court of Oklahoma and the District Court of Cleve­
land County there was only one institution maintained by 
the State for the legal education of its citizens, in which 
school white students were then eligible to enroll. The 
Per Curiam opinion of this Court stated that petitioner’s 
education must be furnished by the state as soon as it is 
furnished to other students.

It is a fact heretofore admitted by the state in argu­
ment before this Court, and alleged in the present petition 
that entering white students are to begin their legal studies 
at the University of Oklahoma on January 29, 1948.

To the time of filing this petition, three days before 
the new term at the Oklahoma University Law School, how­
ever, the petitioner has no assurance of a legal education 
to be provided by the State of Oklahoma pursuant to the 
clear mandate of this Court. She has not been admitted to 
any school and there is no law school other than the Univer­
sity of Oklahoma Law School maintained by the state.

While it is true that the District Court’s order purports 
to recognize petitioner’s right to a legal education on the 
same basis as white citizens, petitioner asserts that this 
right has been paid lip service and conceded to her through­



16

out the two years since she first applied for a legal educa­
tion. The recognition of this right, in a decree frustrating 
its exercise, leaves petitioner exactly where she was before 
the decision of this Court. Any decree which does not 
plainly and unequivocally direct her admission to the Uni­
versity of Oklahoma must fail to achieve compliance with 
the mandate of this Court.

In the light of the decision of this Court that the peti­
tioner must receive her legal education at the same time 
that it is offered to white students, the action of the State 
Supreme Court in requiring that this be done within the 
policy of segregation, when only one facility exists and 
time is of the essence, constitutes a clear violation of the 
mandate of this Court and of the ruling in Missouri ex rel. 
Gaines v. Canada, 305 U. S. 337.

Petitioner asks this Court to take judicial notice of the 
fact that it is completely impossible to set up, within a 
period of one week, a law school which would offer adequate 
facilities for the acquisition of the professional skills neces­
sary for the practice of the law. Eminent authorities in 
the field of legal education have demonstrated that there 
are certain features of a law school which are necessary to 
a proper legal education which can only be found in a full­
time, accredited law school.1 Some of these are: a full-time 
faculty,1 2 a varied and inclusive curriculum,3 an adequate 
library, well-equipped building and several classrooms,4 a 
well-established, recognized law review and a moot court.5

1 See Boyer, Smaller Law Schools: Factors Affecting Their
Methods and Objectives, 20 Oregon Law Rev. 281 (1941).

2 Ibid.
3 Ibid.
4 Townes, Organisation and Operation of a Lazo School, 2 Am. 

Law School Rev. 436 (1910) ; Ballantine, The Place in Legal Educa­
tion of Evening & Correspondence Law Schools, 4 Am. Law School 
Rev. 369 (1918).

5 See Boyer. Smaller Lazv Schools: Factors Affecting Their
Methods and Objectives, 20 Oregon Law Rev. 281 (1941).



17

Equally essential to a proper legal education in a demo­
cratic society is the inter-change of ideas and attitudes 
which can only be effected when the student-body is repre­
sentative of all groups and peoples. Exclusion of any one 
group on the basis of race, automatically imputes a badge 
of inferiority to the excluded group— an inferiority which 
has no basis in fact.8 The role of the lawyer, moreover, is 
often that of a law-maker, a “ social mechanic” , and a 
“ social inventor. ” 6 7 8 A profession which produces future 
legislators and social inventors to whom will fall the social 
responsibilities of our society, can not do so on a segregated 
basis.8 Quite aside from consideration of those factors 
which are necessary for a proper legal education, it is evi­
dent, on its face, that one student cannot constitute a law 
school.

The core of the decision of the Oklahoma courts, prior 
to the decision of this Court, was that the segregation 
statutes of the State of Oklahoma were an effective bar to 
petitioner’s right to attend the University of Oklahoma, 
despite the Fourteenth Amendment. The present position 
of the Oklahoma courts is to the same effect despite the 
mandate of this Court. For example, the decision of the 
Supreme Court of Oklahoma states:

“ Said Board of Regents is hereby directed, under 
the authority conferred upon it by the provisions of 
Art. 13-A, Constitution of the State of Oklahoma, 
and Title 70 O. S. 1941, Secs. 1976, 1979, to afford to

6 The Black and White of Rejections for Military Service, Ameri­
can Teachers Association, August, 1944, page 29; Otto Klineberg, 
Negro Intelligence and Selective Migration, New York, 1935; 
J. Peterson & L. H. Lanier, “ Studies in the Comparative Abilities of 
Whites and Negroes,”  Mental Measurement Monograph, 1929.

7 Simpson, The Function o f a University Law School, 49 Harv. 
L. Rev. 1068, 1072. See also McCormick, The Place and Future of 
the State University Law School, 24 N. C. L. Rev. 441.

8 Simpson, op. cit. p. 1069. See also Stone, The Public Influence 
o f the Bar, 48 Harv. L. Rev. 1.



18

plaintiff, and all others similarly situated, an op­
portunity to commence the study of law at a state 
institution as soon as citizens of other groups are 
afforded such opportunity, in conformity with the 
equal protection clause of the Fourteenth Amend­
ment of the Federal Constitution and with the pro­
visions of the Constitution and statutes of this state 
requiring segregation of the races in the schools of 
this state. Art. 13, Sec. 3, Constitution of Okla­
homa; 70 0. S. 1941, Secs. 451-457.”  (Italics added.)

The order of the District Court of Cleveland County 
states:

“ It is, therefore, ordered, adjudged and decreed 
by this Court that unless and until the separate 
school of law for negroes, which the Supreme Court 
of Oklahoma in effect directed the Oklahoma State 
Regents for Higher Education to establish . . .  is 
established and ready to function at the designated 
time applicants of any other group may hereafter 
apply for admission to the first year class of the 
School of Law of the University of Oklahoma, . . . 
the defendants, Board of Regents of the University 
of Oklahoma, et al., be and the same are hereby 
ordered and directed to either:

(1) enroll plaintiff . . . , or
(2) not enroll any applicant of any group in said 

class until said said separate school is estab­
lished and ready to function.”

It is therefore clear that the action of the Supreme Court 
of Oklahoma and the District Court of Cleveland County 
violates the mandate of this Court and leaves the petitioner 
in relation to the enforcement of her rights by the Oklahoma 
courts in the same position she was in when she originally 
applied to those courts in 1946.



19

II.

Mandamus is the appropriate remedy in this case.

The authority of this Court to issue a writ of mandamus 
is derived from Section 262 of the Judicial Code (36 Stat. 
1162, 28 U. S. C. 377), which provides that the federal courts 
“ shall have power to issue all writs not specifically pro­
vided for by statute, which may be necessary for the exer­
cise of their respective jurisdictions, and agreeable to the 
usage and principles of law.”

Mandamus is the appropriate remedy in this case for 
the reason that: (1) the writ will always lie to compel 
obedience to a mandate of an appellate court; (2) review 
on appeal is not an adequate remedy because of the delay 
and injury to petitioner attendant upon that procedure.

M andam us W ill A lw ays Lie to Com pel O bedience 
to a M andate o f  This Court.

The right of this Court to issue writs of mandamus in 
aid of its appellate jurisdiction has been recognized in a 
long, unbroken line of decisions. In 1859 Mr. Chief Justice 
Taney, in the case of United States v. Fossatt, 21 How. 445, 
stated: “ But when a case is sent to the court below by 
a mandate from this court, no appeal will lie from any order 
or decision of the court until it has passed its final decree in 
the case. And if the court does not proceed to execute the 
mandate, or disobeys and mistakes its meaning, the party 
aggrieved may, by motion for a mandamus, at any time, 
bring the errors or omissions of the inferior court before 
this court for correction.”

The reasons for this rule are clear. Once a case has 
been decided by this Court and has been remanded to the 
lower court, the lower court is bound by the mandate of this



2 0

Court as the law of the case and must carry it into execu­
tion pursuant to said mandate. The lower court cannot 
vary it or examine it for any purpose other than execution 
or give any other or further relief, or review it even for 
apparent error, upon any matter decided on appeal, or 
intermeddle with it, further than to settle so much as has 
been remanded.”

Where, as here, both the State Supreme Court and the 
District Court, while purporting to follow the mandate of 
this Court, have in fact refused to abide by the mandate of 
this Court, the very existence of government by law is 
threatened and a writ of mandamus should issue from this 
Court.

But for the decision of this Court, its mandate and the 
authority of this Court to issue mandamus, petitioner’s 
federally protected rights are no nearer realization than 
at the time she first applied for relief in the Cleveland 
County District Court. The courts and the administrative 
agencies of the State of Oklahoma continue effectively to 
deprive petitioner of her federally protected rights in open 
defiance of the Constitution of the United States and the 
mandate of this Court. Petitioner is left remediless with­
out the affh’mative enforcement of her rights by this Court 
through the issuance of the writ of mandamus as prayed 
for in her petition.

9 E x Parte Texas, 315 U. S. 8; Fed. Communications Commis­
sion v. Pottsville, 309 U. S. 134; E x Parte Union Steamboat Co., 
178 U. S. 317; In re Potts, 166 U. S. 263; In re Sandford Fork and 
Tool Co., 160 U. S. 247; E x Parte Sibbald, 12 U. S. 488; U. S. v. 
Fossatt, 21 How. 445.



21

C on clu sion .

W herefore, it is respectfully submitted that the peti­
tion for writ of mandamus be issued as prayed for and that 
the petitioner be given whatever further relief is meet and 
proper.

T hurgood Marshall,
A mos T. H all,

Attorneys for Petitioner.

W illiam H. H astie,
E dward R. Dudley,
Marian W yn n  Perry,

Of Counsel.

January, 1948.





23

Exhibit A.

IN THE

SUPREME COURT OF THE STATE OF OKLAHOMA

A da Lois Sipuel, \
Plaintiff in Error, |

vs. I

Board of Regents of the University of \ No. 32756 
Oklahoma, George L. Cross, Maurice [
H. Merrill, George W adsack, and V 
Roy Gittinger,

Defendants in Error. I

Syllabus

1. The decision of the Supreme Court of the United 
States upon an issue of law involving a right guaranteed 
a person by the Constitution of the United States is bind­
ing upon the State of Oklahoma. Upon a reversal and re­
mand of a cause or proceeding involving such right, this 
court, when ordered and directed so to do, will proceed not 
inconsistent with the opinion of the Supreme Court of the 
United States.

2. It is the State’s policy, established by Constitution 
and statutes, to segregate white and negro races for pur­
pose of education at institutions of higher learning.

3. It is the duty of the Supreme Court of the State of 
Oklahoma to maintain State’s policy of segregating white 
and negro races for purpose of education so long as it does 
not conflict with Federal Constitution.



2 4

4. It is the duty of the Oklahoma State Regents for 
Higher Education to afford citizens of the negro race op­
portunity for education in conformity with the equal pro­
tection clause of the Fourteenth Amendment to the Federal 
Constitution and with the provisions of the Constitution 
and statutes of this state requiring segregation of the races 
in the schools of the state. Art. 13, Sec. 3, Constitution of 
Oklahoma; 70 0. S. 1941 Secs. 451 et seq.

A ppeal F rom D istrict Court of Cleveland County

Oklahoma

Hon. B en T. W illiams, Judge

Regents of Higher Education of the State of Oklahoma 
ordered and directed to proceed according to law.

Mandate directed to issue forthwith. Trial Court or­
dered and directed to proceed not inconsistent with the 
opinion of the Supreme Court of the United States and this 
opinion.

A mos T. H all, Tulsa, Oklahoma

T hurgood M arshall and
R obert C. Carter of New York, N. Y. For Plaintiff in 

Error.

F ranklin H. W illiams of New York, N. Y. of Counsel

Mac Q. W illiamson, Attorney General

F red H ansen, Asst. Attorney General

M aurice H. M errill and John B. Cheadle, both of Nor­
man, Oklahoma. For Defendants in Error.



25

Per Curiam:

On April 29, 1947, this court affirmed the District Court 
of Cleveland County, Oklahoma, denying a writ of man­
damus sought by Ada Lois Sipuel, a negro, in a proceeding 
by which she sought to compel her enrollment and admis­
sion as a student in the Law School of the University of 
Oklahoma.

The Supreme Court of the United States reversed the 
judgment of this court by its opinion which follows:

IN THE

SUPREME COURT OF THE UNITED STATES 

Monday, January 12, 1948 

No. 369—October Term, 1947 

“ A da Lois Sipuel,
Petitioner,

v.
\

Board of Regents of the University 
of Oklahoma, et al.,

Respondents.

On Writ of Certiorari to the Supreme 
Court of the State of Oklahoma

“ Per Curiam

“ On January 14, 1946, the petitioner, a Negro, con- 
cededly qualified to receive the professional legal education 
offered by the State, applied for admission to the School 
of Law of the University of Oklahoma, the only institution 
for legal education supported and maintained by the tax­
payers of the State of Oklahoma. Petitioner’s application 
for admission was denied solely because of her color.



26

“ Petitioner then made application for a writ of man­
damus in the District Court of Cleveland County, Oklahoma. 
The writ was refused, and the Supreme Court of the State 
of Oklahoma affirmed the judgment of the District Court.
--------- Okla. -----------, 180 P. 2d 135. We brought the case
here for review.

“ The petitioner is entitled to secure legal education 
afforded by a state institution. To this time, it has been 
denied her although during the same period many white 
applicants have been afforded legal education by the State. 
The State must provide it for her in conformity with the 
equal protection clause of the Fourteenth Amendment and 
provide it as soon as it does for applicants of any other 
group. Missouri ex rel. Gaines v. Canada, 305 U. S. 337 
(1938).

“ The judgment of the Supreme Court of Oklahoma is 
reversed and the cause is remanded to that court for pro­
ceedings not inconsistent with this opinion.

“ The mandate shall issue forthwith.”

The Supreme Court of the United States in the Gaines 
case, citing many of its former opinions, reaffirmed the 
Constitutions and laws of states creating separate schools, 
saying:

“ In answering petitioner’s contention that this 
discrimination constituted a denial of his constitu­
tional right, the state court has fully recognized the 
obligation of the state to provide negroes with advan­
tages for higher education substantially equal to the 
advantages offered to white students. The state has 
sought to fulfill that obligation by furnishing equal 
facilities in separate schools, a method the validity 
of which has been sustained by our decisions.”



27

That court has not since held to the contrary.

The Oklahoma State Regents for Higher Education is 
the only authority empowered by Constitution and statutes, 
on behalf of the State of Oklahoma, to provide legal edu­
cation in a state institution for petitioner as soon as appli­
cants of any other group of persons of this state may be 
enrolled and admitted to secure legal education in a state 
institution.

On January 15, 1948, the said Board filed in this court 
its motion seeking to be made a party and requesting us to 
define its powers and duties and direct it in the premises. 
Accordingly, on January 16, 1948, the said Board of Re­
gents, by order of this court, was made a party to the pro­
ceedings.

Said Board of Regents is hereby directed, under the 
authority conferred upon it by tlie provisions of Art. 13-A, 
Constitution of the State of Oklahoma, and Title 70 0. S. 
1941, Secs. 1976, 1979, to afford to plaintiff, and all others 
similarly situated, an opportunity to commence the study 
of law at a state institution as soon as citizens of other 
groups are afforded such opportunity, in conformity with 
the equal protection clause of the Fourteenth Amendment 
of the Federal Constitution and with the provisions of the 
Constitution and statutes of this state requiring segregation 
of the races in the schools of this state. Art. 13, Sec. 3, 
Constitution of Oklahoma; 70 0. S. 1941, Secs. 451-457.

Reversed with directions to the trial court to take such 
proceedings as may be necessary to fully carry out the 
opinion of the Supreme Court of the United States and this 
opinion. The mandate is ordered to issue forthwith.

Reversed.

H urst, C. J Davison, V. C. J., R iley, Bayless, W elch, 
Gibson, A rnold, L uttrell, JJ. concur.



2 8

Exhibit B.

IN  T H E

DISTRICT COURT OF CLEVELAND COUNTY, 
S tate of Oklahoma.

A da L ois Sipuel,
Plaintiff,

vs.

B oard of Regents of the U niversity of 
Oklahoma, George L. Cross, M aurice 
H. M errill, George W adsack, and 
R oy Gittinger,

Defendants.

No. 14,807

Journal E ntry

Now on this, th e ------day of January, 1948, the above-
entitled cause came on to be heard by this court on the 
January 17,1948 opinion and mandate of the Supreme Court 
of the State of Oklahoma herein, reversing the decision 
rendered by this court at the trial of said cause and direct­
ing it

“ to take such proceedings as may be necessary to 
fully carry out the opinion of the Supreme Court of 
the United States and this opinion.”

From an examination of said opinion and mandate, this 
court finds:

1. That the material part of the opinion of the Supreme 
Court of the United States, above referred to (said opinion



29

being quoted in full in the instant opinion of the Supreme 
Court of Oklahoma), is as follows:

“ The petitioner is entitled to secure legal education 
afforded by a state institution. To this time, it has 
been denied her although during the same period 
many white applicants have been afforded legal edu­
cation by the State. The State must provide it for 
her in conformity with the equal protection clause of 
the Fourteenth Amendment and provide it as soon 
as it does for applicants of any other group. Missouri 
ex rel. Gaines v. Canada, 305 U. S. 337 (1938).
“ The judgment of the Supreme Court of Oklahoma 
is reversed and the cause is remanded to that court 
for proceedings not inconsistent with this opinion.”

2. That the Supreme Court of Oklahoma found in its 
instant opinion that in the opinion of the Supreme Court 
of the United States in the Gaines case, supra (which case 
is cited with approval by the Supreme Court of the United 
States in its instant opinion), said court reaffirmed the 
constitutional validity of state laws providing for the edu­
cation of the negro and white races,

“ by furnishing equal facilities in separate schools, a 
method the validity of which has been sustained by 
our decisions.”

3. That the Supreme Court of Oklahoma, after in effect 
stating that the Oklahoma State Eegents for Higher Edu­
cation were the only authority empowered by law to estab­
lish such a separate school, directed said regents

“ to afford to plaintiff, and all others similarly situ­
ated, an opportunity to commence the study of law 
at a state institution as soon as citizens of other 
groups are afforded such opportunity, in conformity 
with the equal protection clause of the Fourteenth 
Amendment of the Federal Constitution and with the 
provisions of the Constitution and statutes of this



3 0

state requiring segregation of the races in the schools 
of this state.”

4. That the Supreme Court of Oklahoma did not direct 
this court as to what judgment should be rendered thereby 
other than to state, as aforesaid, that this court’s judgment 
at the trial of this case was reversed, and that this court 
should

“ take such proceedings as may be necessary to fully 
carry out the opinion of the Supreme Court of the 
United States and this opinion.”

5. That in the original opinion of the Supreme Court of 
the State of Oklahoma herein (180 Pac. (2d) 135), decided 
June 24, 1947, said court quoted the following language 
from the decision of the Supreme Court of the United States 
in the Gaines case:

“ We are of the opinion that the ruling [of the Su­
preme Court of Missouri] was error, and that peti­
tioner was entitled to be admitted to the law school 
of the State University in the absence of other and 
proper provision for his legal training within the 
State.” ,

and held:

“ The reasoning and spirit of that decision [the 
Gaines decision] of course is applicable here, that is, 
that the state must provide either a proper legal 
training for petitioner in the state, or admit peti­
tioner to the University Law School.”

6. That the Supreme Court of Oklahoma, however, took 
the position in its said original opinion that the State of 
Oklahoma was not obligated to provide the plaintiff, Ada 
Lois Sipuel (now Mrs. Warren W. Fisher), such “ legal 
training”  until she had applied to the Oklahoma State 
Regents for Higher Education for legal training at a sep-



31

arate state institution or “ substantial notice”  had been 
given said regents as to there being at least some “ patron­
age”  for such an institution.

7. That the above position of the Supreme Court of 
Oklahoma as to the necessity of such an application or 
notice was in effect rejected by the Supreme Court of the 
United States in its instant opinion, wherein it is stated 
that plaintiff is entitled “ to secure legal education afforded 
by a state institution,”  and that the state must provide such 
education for her

“ in conformity with the equal protection clause of 
the Fourteenth Amendment and provide it as soon 
as it does for applicants of any other group.”

It is, therefore, ordered, adjudged and decreed by this 
Court that unless and until the separate school of law for 
negroes, which the Supreme Court of Oklahoma in effect 
directed the Oklahoma State Regents for Higher Education 
to establish

“ with advantages for education substantially equal 
to the advantages afforded to white students,”

is established and ready to function at the designated time 
applicants of any other group may hereafter apply for ad­
mission to the first-year class of the School of Law of the 
University of Oklahoma, and if the plaintiff herein makes 
timely and proper application to enroll in said class, the 
defendants, Board of Regents of the University of Okla­
homa, et al., be, and the same are hereby ordered and di­
rected to either:

(1) enroll plaintiff, if she is otherwise qualified, in the 
first-year class of the School of Law of the Uni­
versity of Oklahoma, in which school she will be 
entitled to remain on the same scholastic basis as



32

other students thereof until such a separate law 
school for negroes is established and ready to func­
tion, or

(2) not enroll any applicant of any group in said class 
until said separate school is established and ready 
to function.

It is further ordered, adjudged and decreed that if such 
a separate law school is so established and ready to function, 
the defendants, Board of Regents of the University of Okla­
homa, et al., be, and the same are hereby ordered and di­
rected to not enroll plaintiff in the first-year class of the 
School of Law of the University of Oklahoma.

The cost of this case is taxed to defendants.

This court retains jurisdiction of this cause to hear and 
determine any question which may arise concerning the 
application of and performance of the duties prescribed by 
this order.

/ s /  J ustin H inshaw 
J udge

\



L awyers P ress, I nc., 165 William St., N. Y. C. 7; ’Phone: BEekman 3-2300