Ex Parte Gene Mitchell Gray Motion for Leave to File and Petition for Writ of Mandamus; Brief in Support of Motion and Petition for Mandamus

    IN THE

Qkmrt nf %  Itttteft States
October T erm, 1951 

No.............. Miscellaneous

EX PARTE GENE MITCHELL GRAY, LINCOLN 
ANDERSON BLAKENEY, JOSEPH HUTCH 

PATTERSON a n d  JACK ALEXANDER.

MOTION FOR LEAVE TO FILE PETITION FOR WRIT 
OF MANDAMUS, PETITION FOR A WRIT OF 

MANDAMUS, AND BRIEF IN SUPPORT OF 
MOTION AND PETITION FOR MANDAMUS

Z. Alexander L ooby, 
R obert L. Caster, 
T hurgood Marshall,

Counsel for Petitioners.
Carl A. Cowan,
A von N. 'Williams, J r.,

Of Counsel.

J udicial Printing Co., I nc., 82 Beekman St., N. Y.—BEekman 3-9084-5-6 182



I N D E X

PAGE

Motion for Leave to File a Petition for Writ of Man­
damus .............................. ............. ..........................  1

Petition for Writ of Mandamus to the United States 
District Court for the Eastern District of Tennessee, 
Northern Division, to the Honorable Shackelford 
Miller, Jr., Judge, United States Court of Appeals 
for the Sixth Circuit, the Honorable Leslie R. Darr 
and the Honorable Robert L. Taylor, Judges of the 
United States District Court for the Eastern Dis­
trict of Tennessee .....................................................  3

Brief in Support of Motion and Petition for Writ of 
Mandamus .....................................................   9

Opinions Below .......................................................  9
Jurisdiction ............................................................. 9
Questions Presented................................................ 10
Statutes Involved.................................................... 11
Statement ................................................................  12
Argument:

This Court may properly issue a Writ of Man­
damus directing a district court of three 
judges to determine petitioner’s right to in­
junctive relief applied for pursuant to Title
28, United States Code, Section 2281 ............ 14

Conclusion ..............................................................  16
Appendices ..............      19



11 I N D E X

Cases Cited

PAGE

Driscoll v. Edison Light and Power Co., 307 U. S. 104. 15

Eichholz v. Public Service Commission, 306 U. S. 268. 15
Ex parte Bransford, 310 U. S. 354, 355 ...................... . 15
Ex parte Collins, 277 U. S. 565, 566 .............................  15
Ex parte Metropolitan Water Co., 220 U. S. 539 .........  14

Fleming v. Rhodes, 331 U. S. 100 .................................  15

McLaurin v. Board of Regents, 339 U. S. 637 . . . . . . . .  15
Missouri ex rel. Gaines v. Canada, 305 IT. S. 337 .........  15
Modern Woodmen of America v. Casados, 15 F. Supp.

483 (D. C. New Mexico, 1936) ...................................  14

Oklahoma Gas & Electric Co. v. Oklahoma Packing
Co., 292 II. S. 386 .......................................................  16

Oklahoma Natural Gas Co. v. Russell, 261 U. S. 290.. 15
Osage Tribe of Indians v. Ickes, 45 F. Supp. 178, 186,

187 (D. C., 1942) .......................................................... 16

Plessy v. Ferguson, 163 U. S. 537 .................................  15
Public National Bank of New York, 278 U. S. 101.......  16

Query v. United States, 316 U. S. 486 .......................... 15

Sipuel v. Board of Regents, 332 U. S. 631....................  15
Smith v. Wilson, 273 U. S. 388 ..................................... 16
Stratton v. St. Louis Southwest Railway Co., 282 U. S.

10, 16 ........................................................................15,16
Sweatt v. Painter, 339 U. S. 629 .. ...............................  15

Wilson v. Board of Supervisors, 94 L. ed. (Ad. Op.)
200 ...............................................................................  15



i n d e x 111

Statutes Cited

PAGE

Code of Tennessee, Sections 11395, 11396 and 11397.. 5,11,
12,14,15

Constitution of the State of Tennessee, Article 11, 
Section 1 2 ..............................................5,10,11,12,14,15

Title 28, United States Code:
Section 1253 ....................
Section 1331 ....................
Section 1343 ....................
Section 1651(a) ...............
Section 2101(b) ...............
Section 2281 ....................
Section 2284 ....................

.7,10,16 

. . . .  5 

. . . .  5 

. . . .  9 

. . . .  6

..7,10,12,13,14,15 

.............5,10,13,15



IN  THE

i l u t p n w  G k m r t  i\}t H u t t e i i
October T erm, 1951 

No.............. Miscellaneous

Ex P arte Gene Mitchell Gray, L incoln A nderson 
Blakeney, J oseph H utch P atterson and 

J ack Alexander.

MOTION FOR LEAVE TO FILE A PETITION FOR 
WRIT OF MANDAMUS

To the Honorable Frecl M. Vinson, Chief Justice of the 
United States, and to the Honorable Associate Justices 
of the Supreme Court of the United States:

Petitioners move the Court for leave to file the petition 
for writ of mandamus hereto annexed; and further move 
that an order and rule be entered and issued directing the 
Honorable, the United States District Court for the East­
ern District of Tennessee, Northern Division, the Honor­
able Shackelford Miller, Jr., Circuit Judge of the United 
States Court of Appeals for the Sixth Circuit, the Honor­
able Leslie R. Darr and the Honorable Robert L. Taylor, 
Judges of the United States District Court for the Eastern 
District of Tennessee to show cause why a writ of man­
damus should not be issued against them in accordance 
with the prayer of said petition, and why your petitioners



2

should not have such other and further relief in the prem­
ises as may be just and meet.

Z. Alexander L ooby,
R obert L. Carter,
T hurgood Marshall,

Counsel for Petitioners.

Motion for Leave to File a Petition for
Writ of Mandamus

Carl A. Cowan,
Avon N. W illiams, J r.,

Of Counsel.



3

IN THE

SUPREME COURT OF THE UNITED STATES 
October T erm, 1951

No..............Miscellaneous

----------  mm > — ■ ----------

Ex P arte Gene Mitchell Gray, L incoln A nderson 
Blakeney, J oseph H utch P atterson and 

J ack Alexander.

-----------  — i »  ------------

PETITION FOR WRIT OF MANDAMUS TO THE UNITED 
STATES DISTRICT COURT FOR THE EASTERN DIS­
TRICT OF TENNESSEE, NORTHERN DIVISION, TO THE 
HONORABLE SHACKELFORD MILLER, JR., JUDGE, 
UNITED STATES COURT OF APPEALS FOR THE SIXTH 
CIRCUIT, THE HONORABLE LESLIE R. DARR AND THE 
HONORABLE ROBERT L. TAYLOR, JUDGES OF THE 

UNITED STATES DISTRICT COURT FOR THE 
EASTERN DISTRICT OF TENNESSEE

To the Honorable Frecl M. Vinson, Chief Justice of the 
United States, and to the Honorable Associate Justices 
of the Supreme Court of the United States:

The petitioners respectfully show the following:

1. Petitioner, Gene Mitchell Gray, applied for admis­
sion to the University of Tennessee, such application being 
for registration and enrollment in the graduate school on 
the first day of the 1950 fall quarter. Petitioner, Joseph 
Hutch Patterson, applied for admission to the University 
of Tennessee, Iris application being for registration and en­
rollment on the first day of the 1951 winter quarter. Peti­



4

tioners, Lincoln Anderson Blakeney and Jack Alexander, 
sought permission to enroll in the law school of the Uni­
versity of Tennessee on the first day of the 1951 winter 
quarter.

2. Petitioners are citizens of the United States and of 
the State of Tennessee. They meet all lawful qualifications 
requisite for admission to the University to pursue the 
courses of study for which they applied, and their applica­
tions would have been accepted except for the fact that 
petitioners are Negroes.

3. The University of Tennessee is state owned and 
operated and is the only state institution where petitioners 
can receive the educational facilities, opportunities and 
advantages which they are seeking.

4. The Board of Trustees of the University of Ten­
nessee met on December 4, 1950 and refused to admit 
petitioners to the University of Tennessee because they 
are Negroes. This action was taken in a formal order which 
reads as follows:

“ Whereas, the Constitution and the Statutes of 
the State of Tennessee expressly provide that there 
shall be segregation in the education of the races in 
schools and colleges in the State and that a viola­
tion of the laws of the State in this regard subjects 
the violator to prosecution, conviction and punish­
ment as therein provided; and,

“ Whereas, this Board is bound by the Constitu­
tional provision and the acts referred to;

“ Be it therefore resolved, that the applications 
by members of the Negro race for admission as 
students into The University of Tennessee be and 
same are hereby denied.”

Petition for Writ of Mandamus



5

Petition for Writ of Mandamus

5. Petitioners thereupon filed a complaint in. the United 
States District Court for the Eastern District of Tennessee 
pursuant to Title 28, United States Code, Sections 1331, 
1343 and 2281 seeking a preliminary and permanent in­
junction restraining the university officials from refusing 
to admit them to the University of Tennessee because of 
their race and color, and from enforcing Article 11, Sec­
tion 12 of the Constitution of Tennessee, Sections 11395, 
11396, 11397 of the Code of Tennessee, and the December 
4, 1950 order of the Board on the grounds that enforce­
ment of the Constitution, statutes and order was uncon­
stitutional in that petitioners were thereby denied the 
equal protection of the laws as guaranteed under the 
Fourteenth Amendment to the Constitution of the United 
States.

6. In the answer tiled on behalf of the University, it 
was admitted that petitioners’ applications had been re­
fused pursuant to Article 11, Section 12 of the Constitution 
and Sections 11395, 11396 and 11397 of the Code of Ten­
nessee, which made it unlawful for Negro and white 
students to attend the same schools. No question was 
raised with respect to petitioners’ qualifications, and it 
was not denied that the University of Tennessee was the 
only state institution offering the courses of study peti­
tioners desired to pursue. Whereupon, petitioners filed 
a motion for judgment on the pleadings.

7. A special three-judge district court was convened 
pursuant to Title 28, United States Code, Section 2284, 
and a hearing before such court was held in Knoxville, 
Tennessee on March 13, 1951. 8

8. On April 13, 1951, this specially constituted court 
rendered an opinion in which it held that the issues in-



6

volved in the case were not appropriate for disposition by 
a three-judge court and ordered the court dissolved. Its 
order reads in part as follows:

“ * * * the two Judges designated by the Chief 
Judge of the Circuit to sit with the District Judge, 
in whose District the action was filed, do now with­
draw from the case, and that the case proceed be­
fore said District Judge in the District of its filing.” 3

9. On April 20, 1951 the United States District Court 
for the Eastern District of Tennessee, Northern Division, 
without further hearing handed down an opinion in which 
it was held that petitioners had been denied the equal 
protection of the laws, and that they were entitled to be 
admitted to the University of Tennessee. The court, how­
ever, refused to issue an injunctive decree stating:

“ Believing that the University authorities will 
either comply with the law as herein declared or take 
the case up on appeal, the Court does not deem an 
injunctive order presently to be appropriate. The 
case, however, will be retained on the docket for 
such orders as may seem proper when it appears 
that the applicable law has been finally declared” 
97 P. Supp. 463.1 2

10. Petitioners, believing that their applications for 
temporary and permanent injunctions to enjoin the Uni­
versity officials from barring their admission to the Uni­
versity pursuant to the state constitution, statutes and 
order of the Board of Trustees required decision by a dis­
trict court of three judges and that the order of April 13th 
dissolving the district court constituted a denial of their 
application, appealed to this Court pursuant to Title 28, 
United States Code, Sections 1253 and 2101(b). Such ap­
peal is now pending before this Court as case No. 120.

Petition for Writ of Mandamus

1. The opinion and order are set forth in Appendix A.
2. The opinion of the Court is set forth as Appendix B.



11. Either the order of April 13, 1951, in which the dis­
trict court of three judges refused to take any action on 
petitioners’ application for a temporary and permanent 
injunction, on the grounds that the cause was not appro­
priate for their determination, constitutes a denial of the 
application for a temporary and permanent injunction 
within the meaning of Title 28, United States Code, Section 
1253, and direct appeal to this Court is appropriate.

12. Or the order of April 13, 1951 involves refusal by 
the court below to perform a mandatory act required by 
Title 28, United States Code, Section 2281, and petitioners
must seek the issuance of a writ of mandamus from this 
Court.

7

Petition for Writ of Mandamus

W herefore, petitioners pray that in the event that 
petitioners’ direct appeal in case No. 120 is considered 
improper and is denied, a writ of mandamus issue from 
this Court directed to the Honorable the United States Dis­
trict Court for the Eastern District of Tennessee, Northern 
Division, the Honorable Shackelford Miller, Jr., Circuit 
Judge of the United States Court of Appeals for the Sixth 
Circuit, the Honorable Leslie R. Darr and the Honorable 
Robert L. Taylor, Judges of the United States District 
Court for the Eastern District of Tennessee to show cause 
on a day to be fixed by this Court why mandamus should 
not issue from this Court directing said Honorable Shackel­
ford Miller, Jr., Circuit Judge of the United States Court 
of Appeals for the Sixth Circuit, and the Honorable Leslie 
R. Darr and the Honorable Robert L. Taylor, Judges of the 
United States District Court to vacate and expunge from 
the record and the order of April 13, 1951 dissolving the 
three-judge court and the subsequent action of Honorable 
Robert L. Taylor in which he proceeded to pass upon the 
issues involved in this case.



8

Petition for Writ of Mandamus

That petitioners have such additional relief and process 
that may he necessary and appropriate in the premises.

Respectfully submit ted,

Counsel for Petitioners.

Cakl A. Cowan,
Avon N. W illiams, J b.,

Of Counsel.



IN  THE

fihtprniu' (Enurt nf tiii> llnitrii &tata
October T erm, 1951

No..............Miscellaneous

_____-----  ■ <i—- ----------- -

Ex P arte Gene M itchell Gray, L incoln A nderson 
Blakeney, J oseph H utch P atterson and 

J ack A lexander,

BRIEF IN SUPPORT OF MOTION AND PETITION 
FOR WRIT OF MANDAMUS

Opinions Below

The opinion and order of the United States District 
Court, entered April 13, 1951, dissolving the specially con­
stituted three-judge District Court which heard this cause 
is unreported and is appended hereto as Appendix A. 
The opinion of the United States District Court, of April 
20, 1951, which held that petitioners were entitled to be 
admitted to the University of Tennessee but which refused 
to grant injunctive relief is reported in 97 F. Snpp. 463 
and is appended hereto as Appendix B.

Jurisdiction

Jurisdiction of this Court is invoked under Title 28, 
United States Code, Section 1651 (a) since the ordinary 
remedy of appeal and certiorari may be unavailable and

[ 9 ]



1 0

inadequate, and petitioners ’ right to take an appeal in this 
case, pursuant to Title 28, United States Code, Section 1253 
is beclouded with doubt.

Questions Presented

1. Whether, after notice and hearing, the Honorable 
Shackelford Miller, J r., Circuit Judge of the United 
States Court of Appeals for the Sixth Circuit, the Honor­
able L eslie R. Darr, and the Honorable R obert L. T aylor, 
Judges of the United States District Court for the Eastern 
District of Tennessee, in issuing the order of April 13, 
1951 dissolving the specially-constituted three-judge court 
on the grounds that the issue was not appropriate for 
decision by a three-judge court under the provisions of 
Title 28, United States Code, Section 2281, failed to per­
form the ministerial duties of their office as required under 
Title 28, United States Code, Section 2281 and 2284.

2. Whether the Honorable R obert L. T aylor, who 
ruled on April 20, 1951 that petitioners were entitled to 
be admitted to the University of Tennessee but who refused 
to grant injunctive relief, exceeded his jurisdiction in view 
of the fact that the disposition of the case herein required 
action by a district court of three judges.

3. Whether this Court should issue a mandate order­
ing the Honorable Shackelford Miller, J r., Circuit Judge 
of tiie United States Court of Appeals for the Sixth 
Circuit, the Honorable L eslie R. Dark and the Honorable 
R obert L. T aylor, Judges of the United States District 
Court for the Eastern District of Tennessee to make a final 
determination of petitioners’ application for a temporary 
and permanent injunction to enjoin the University officials 
from refusing to admit them to the University of Tennessee 
and from enforcing Article 11, Section 12 of the Constitu­



11

tion of tlie State of Tennessee, Sections 11395, 11396, 11397 
of the Code of Tennessee, and the December 4, 1950 order 
of the Board of Trustees on the grounds that such enforce­
ment constitutes an unconstitutional deprivation of peti­
tioners’ rights.

Statutes Involved

The statutory provisions involved in this ease are as 
follows:

Article 11, Section 12 of the Constitution of the State 
of Tennessee reads as follows:

“ * * * And the fund called the common school 
fund, and all the lands and proceeds thereof * * * 
heretofore by law appropriated by the General 
Assembly of this State for the use of common 
schools, and all such as shall hereafter be appro­
priated, shall remain a perpetual fund, * * * and 
the interest thereof shall be inviolably appropriated 
to the support and encouragement of common schools 
throughout the State, and for the equal benefit of 
all the people thereof. * * * No school established 
or aided under this section shall allow white and 
negro children to be received as scholars together 
in the same school. * * *”

Section 11395 of the Code of Tennessee reads as 
follows:

“ * * * It shall be unlawful for any school, 
academy, college, or other place of learning to allow 
white and colored persons to attend the same school, 
academy, college, or other place of learning.”

Section 11396 of the Code of Tennessee reads as 
follows:

“ * * * It shall be unlawful for any teacher, pro­
fessor, or educator in any college, academy, or



1 2

school of learning, to allow the white and colored 
races to attend the same school, or for any teacher 
or educator or other person to instruct or teach 
both the white and colored races in the same class, 
school, or college building, or in any other place or 
college building, or in any other place or places of 
learning, or allow or permit the same to be done 
with their knowledge, consent or procurement.”

Section 11397 of the Code of the State of Tennessee 
reads as follows:

“ * * * Any person violating any of the provi­
sions of this article, shall be guilty of a mis­
demeanor, and, upon conviction, shall be fined for 
each offense fifty dollars, and imprisonment not less 
than thirty days nor more than six months.”

Statement

Petitioners applied for admission to the graduate and 
professional schools of the University of Tennessee. They 
met all the requirements for admission thereto except for 
the fact that they are Negroes. The University of Ten­
nessee is the only institution maintained and operated by 
the state which offers the courses of study which petitioners 
desire to pursue.

On December 4, 1950 the Board of Trustees of the 
University of Tennessee issued a formal order in which it 
denied petitioners’ applications for admission to the 
University on the grounds that to admit them would be 
violative of the Constitution and statutes of the State. 
Petitioners filed a complaint, pursuant to Title 28, United 
States Code, Section 2281, to restrain the enforcement of 
Article 11, Section 12 of the Constitution of Tennessee; 
Sections 11395, 11396 and 11397 of the Code of Tennessee 
and the December 4, 1950 order of the Board of Trustees



13

on the grounds that such enforcement constituted an un­
constitutional deprivation of petitioners’ rights.

The University, in answer to petitioners’ complaint, 
admitted that their applications had been refused pursuant 
to the Constitution and statutes of the State of Tennessee. 
Petitioners thereupon filed a motion for judgment on the 
pleadings.

A three-judge district court convened, in accordance 
with Title 28, of the United States Code, Sections 2281 
and 2284, and met in Knoxville, Tennessee on March 13, 
1951 for a hearing on the cause. On April 13, 1951 that 
court held that the issues raised in petitioners’ complaint 
were not appropriate for decision by a three-judge court 
and ordered the matter to proceed before the District 
Judge of the United States District Court for the Eastern 
District of Tennessee, Northern Division, in which suit 
was filed. That court subsequently handed down an opinion 
holding that petitioners were entitled to be admitted to 
the University of Tennessee, but injunctive relief was 
refused on the grounds that the University officials would 
either comply with the law or would take an appeal. As 
of now, petitioners have not been admitted to the Univer­
sity of Tennessee nor have the University officials given 
any indication that petitioners will be admitted except 
under court mandate.



14

ARGUMENT

This Court may properly issue a Writ of Man­
damus directing a district court of three judges to 
determine petitioner’s right to injunctive relief ap­
plied for pursuant to Title 28, United States Code, 
Section 2281.

Petitioners were here refused admission to the 
University of Tennessee solely because of their race and 
color, pursuant to the December 4, 1950 order of the Board 
of Trustees of the University. This order was based on 
Article 11, Section 12 of the State Constitution and Sec­
tions 11395, 11396 and 11397 of the Code of Tennessee, 
which make it unlawful for Negro and white students to be 
educated together in the same school. Petitioners sought 
an injunction against enforcement of these provisions on 
the grounds that such enforcement deprived them of the 
equal protection of the laws, and hence that Article 11, 
Section 12 of the Constitution of Tennessee, Sections 11395, 
11396 and 11397 of the Code of Tennessee and the Decem­
ber 4,1950 order of the Board of Trustees of the University 
were unconstitutional as applied. Thus the cause was 
brought squarely under the provisions of Title 28, United 
States Code, Section 2281, and a prima facie case for 
determination by a district court of three-judges was 
presented, Modern Woodmen of America v. Gasados, 15 
F. Supp. 483 (D. C. New Mexico 1936) ; Ex parte Metropoli­
tan Water Co., 220 U. S. 539. The University officials, in 
their defense to petitioners’ complaint, admitted that 
petitioners had been denied admission to the University 
pursuant to the state’s constitutional provisions and 
statutes, enforcement of which petitioners were seeking 
to enjoin, which forbade the commingling together of 
Negro and white students in the same schools.

There can no longer be any doubt that Negro applicants 
must be accorded educational opportunities and advantages



15

under the same terms and conditions as these opportunities 
and advantages are afforded white students, and at the 
same time. Missouri ex rel. Gaines v. Canada, 305 U. S. 
337; Sipuel v. Board of Regents, 332 U. S. 631; Sweatt v. 
Painter, 339 U. S. 629; McLaurin x. Board of Regents, 339 
LT. S. 637; and Wilson v. Board of Supervisors, 91 L. ed. 
(Ad. Op.) 200, have made it clear that any form of racial 
segregation practiced at the professional and graduate 
school levels of state universities violates the equal pro­
tection clause of the Fourteenth Amendment, Here, how­
ever, the University of Tennessee was the only state insti­
tution offering the courses which petitioners desired to 
pursue. Under these circumstances, without regard to the 
present constitutional vitality of the “ separate but equal’’ 
doctrine of Plessy v. Ferguson, 163 IT. S. 537, with respect 
to graduate and professional education, Article 11, Section 
12 of the Constitution of Tennessee and Sections 11395. 
11396 and 11397 of the Code of Tennessee are unconstitu­
tional as applied, in that pursuant to their provision peti­
tioners were prohibited from being admitted to the Univer­
sity of Tennessee, Missouri ex rel. Gaines v. Canada, supra. 
and petitioners are entitled to injunctive relief against un­
constitutional enforcement of these provisions, McLaurin 
v. Board of Regents, supra. Petitioners’ cause, there­
fore, properly required adjudication by a district court of 
three judges, Fleming v. Rhodes, 331 U. S. 100; McLaurin 
v. Board of Regents, supra; Driscoll v. Edison Light and 
Power Co.. 307 U. S. 104;. Oklahoma Natural Gas Co. v. 
Russell, 261 U. S. 290; Eichhols v. Public Service Commis­
sion, 306 U. S. 268; Query v. United States, 316 U. S. 486.

It is clear that petitioners would have been entitled to 
a writ of mandamus from this Court had the court below 
refused to convene a district court of three judges as pro­
vided in Title 28, United States Code, Sections 2281 and 
2284. Ex parte Collins, Til U. S. 565, 566; Ex Parte B ra d ­
ford, 310 IT. S. 354, 355; Stratton v. St. Louis Southwest



16

Railway Co., 282 TJ. S. 10, 16. It is further clear that if 
this is a proper cause for adjudication by a district court 
of three judges that Judge Taylor’s disposition of the 
cause in his April 20th opinion is a nullity, Stratton v. 
St. Louis Southwest Railway Co., supra, and certainly he, 
sitting alone, could not have granted the injunctive relief 
for which petitioners applied.

The basic error, however, of which petitioners com­
plain is the April 13th order of the district court of three 
judges, which had been properly convened and which, on 
March 13, 1951 had held a hearing on petitioners’ applica­
tion for injunctive relief. Where a district court of three 
judges refused to act on a question in which their deter­
mination is made mandatory by statutes, this Court may 
issue a writ of mandamus requiring them to do so. In the 
matter of the Public National Bank of New York, 278 IT. S. 
101; Osage Tribe of Indians v. Ickes, 45 F. Supp. 178, 186, 
187 (DC. 1942). It is submitted that a writ of mandamus 
should be granted in this case.

Conclusion

The question, however, is not free from doubt since the 
order of April 13th dissolving the specially-constituted 
court and ordering the cause to proceed before a district 
judge sitting alone could be considered a denial of peti­
tioners’ application for a temporary and a permanent in­
junction. If so considered, petitioners’ proper recourse 
is to invoke Title 28, United States Code, Section 1253, and 
appeal directly to this Court. See Smith v. Wilson, 273 
U. S. 388; Oklahoma Gas & Electric Co. v. Oklahoma Pack­
ing Co., 292 U. S. 386. Petitioners are not certain whether 
direct appeal or application to this Court for a writ of 
mandamus is their proper procedural remedy. Having al­
ready taken an appeal to this Court, therefore, petitioners



17

are here making application for the issuance of a writ of 
mandamus in the event their appeal should be considered 
procedurally improper.

Respectfully submitted,

Z. Alexander L ooby,
R obert L. Carter, 
T hixrgood Marshall,

Counsel for Petitioners.
Carl A. Cowan,
Avon N. W illiams, J r.,

Of Counsel.

[Appendices F ollow]



APPENDIX “A”

UNITED STATES DISTRICT COURT, FOR THE 
EASTERN DISTRICT OF TENNESSEE, NORTH­
ERN DIVISION

Civil Action No. 1567
Gene Mitchell Gray, L incoln A nderson B lakeney, J o­

seph H utch P atterson and J ack Alexander, Plaintiffs,
v.

T he  B oard of T rustees of the U niversity of T ennessee, 
E tc., et al., Defendants

Before Miller, Circuit Judge, Dark and Taylor, District
Judges.
Miller, Circuit Judge. Tlie plaintiffs by this action seek 

to enjoin the Board of Trustees of the University of Ten­
nessee, the University of Tennessee, and certain of its 
officers from denying them admission to the Graduate 
School and to the College of Law of the University because 
they are members of the Negro race.

In brief, the complaint alleges that the plaintiffs are 
citizens of the United States and of the State of Tennessee, 
are residents of and domiciled in the City of Knoxville, 
State of Tennessee, and are members of the Negro race; 
that plaintiffs, Gene Mitchell Gray and Jack Alexander, 
are fully qualified for admission as graduate students to the 
Graduate School of the University; that plaintiffs Lincoln 
Anderson Blakeney and Joseph Hutch Patterson are fully 
qualified for admission as undergraduate students in law to 
the College of Law of the University; that the four plain­
tiffs are ready, willing and able to pay all lawful charges 
and fees, and to comply with all lawful rules and regula­
tions, requisite to their admission; that the University of 
Tennessee is a corporation duly organized and existing 
under the laws of Tennessee, was established and is oper­
ated as a State function by the State of Tennessee, with 
two of its integral parts or departments being the Graduate

[ 1 9 ]



School and the College of Law; that it operates as an es­
sential part of the public school system of the State of 
Tennessee, maintained by appropriations from the public 
funds of said State raised by taxation upon the citizens 
and taxpayers of the State including the plaintiffs; that 
there is no other institution maintained or operated by the 
State at which plaintiffs might obtain the graduate or legal 
education for which they have applied to the Univer­
sity of Tennessee; that the plaintiffs Gene Mitchell Gray 
and Jack Alexander applied for admission as graduate 
students to the Graduate School of the University and that 
the plaintiffs Lincoln Anderson Blakeney and Joseph Hutch 
Patterson applied for admission as undergraduate students 
in law to the College of Law of the University; and that on 
or about December 4, 1950, the Board of Trustees of the 
University refused and denied each and all of their appli­
cations for admission because of their race or color, relying 
upon the Constitution and Statutes of the State of Tennes­
see providing that there shall be segregation in the educa­
tion of the races in the schools and colleges in the State. 
Plaintiffs contend that the action of the defendants in deny­
ing them admission to the University denies the plaintiffs, 
and other Negroes similarly situated, because of their race 
or color, their privileges and immunities as citizens of the 
United States, their liberty and property without due 
process of law, and the equal protection of the laws, se­
cured by the 14th Amendment of the Constitution of, the 
United States and by Section 41, Title 8, United States 
Code.

The defendants, by answer, state that they are acting 
under and pursuant to the Constitution and the Statutes of 
the State of Tennessee, by which they are enjoined from 
permitting any white and negro children to be received as 
scholars together in the same school; that provision has 
been made by Tennessee Statutes to provide professional 
education for colored persons not offered to them in state 
colleges for Negroes but offered for white students in the 
University of Tennessee; that the State of Tennessee, under 
its Constitution and Statutes and under its police power, 
lias adopted reasonable regulations for the operation of its



institutions based upon established usages, customs and 
traditions, and such regulations being reasonable are not 
subject to challenge by the plaintiffs; and that the 14th 
Amendment of the Constitution of the United States did not 
authorize the Federal Government to take away from the 
State the right to adopt all reasonable laws and regulations 
for the preservation of the public peace and good order 
under the inherent police power of the State.

The plaintiffs requested a hearing by a three-judge court 
under the provisions of Title 28 U. S. Code, Section 2281, 
and moved for judgment on the pleadings in that the plead­
ings showed that there was no dispute as to any material 
fact and they were entitled to judgment as a matter of law. 
The present three-judge court was designated and in due 
course the case was argued before it.

We are of the opinion that the case is not one for de­
cision. by a three-judge court. Title 28 XT. S. Code, Section 
2281, requires the action of a three-judge court only when 
an injunction is issued restraining the action of any officer 
of the State upon the ground of the unconstitutionality of 
such statute. We are of the opinion that the case presents 
a question of alleged discrimination on the part of the 
defendants against the plaintiffs under the equal protection 
clause of the 14th Amendment, rather than the unconstitu­
tionality of the statutory law- of Tennessee requiring segre­
gation in education. As such, it is one for decision by the 
District Judge instead of by a three-judge court.

The plaintiffs rely chiefly upon the decisions of the Su­
preme Court in Missouri v. Canada, 305 U. S. 331, Sipuel 
v. Board of Regents, 332 U. S. 631, Sweatt v. Painter, 339 
IT. S. 629 and McLaurin v. Oklahoma State Regents, 339 
U. S. 637, in which State Universities were required to ad­
mit qualified negro applicants. In each of those cases the 
plaintiff was granted the right to be admitted to the State 
University on equal terms with white students because of 
the failure of the State to furnish to the negro applicant 
educational facilities equal to those furnished white stu­
dents at the State University. The rulings therein are based 
upon illegal discrimination under the equal protection 
clause of the 14th Amendment, not upon the uneonstitu-



2 2

tionality of a State statute. In Sweatt v. Painter, supra, 
the Court expressly pointed out (339 II. S. at Page 631) that 
it was eliminating from the case the question of constitu­
tionality of the State statute which restricted admission 
to the University to white students. Those eases did not 
change the rule, previously laid down by the Supreme 
Court, that State legislation requiring segregatoin was not 
unconstitutional because of the feature of segregation, 
Plessy v. Ferguson, 163 U. S. 537; McCabe v. Atchison T. 
& S. F. Ry. Co., 235 U. S. 151, provided equal facilities were 
furnished to the segregated races. In Sweatt v. Painted, 
supra, the Supreme Court declined (339 U. S. at Page 636) 
to re-examine its ruling in Plessy v. Ferguson, supra. In 
Berea College v. United States, 211 U. S. 45, and Gong Lum 
v. Rice, 275 U. S. 78, state segregation statutes dealing spe­
cifically with education were not held to be unconstitutional. 
The validity of such legislation was recognized in Missouri 
x. Canada, supra, wherein the Court stated (305 U. S. at 
page 344)—“ 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.” 
In that case, as well as in Sweatt v. Painter, supra, there 
were State statutes which required segregation for the 
purpose of higher education, but the decisions in those cases 
did not declare those statutes unconstitutional.

By Chapter 43 of the Public Acts of 1941, the State of 
Tennessee authorized and directed the State Board of Edu­
cation and the Commissioner of Education to provide edu­
cational training and instruction for negro citizens of Ten­
nessee equivalent to that provided at the University of Ten­
nessee by the State of Tennessee for white citizens of Ten­
nessee, such training and instruction to be made available 
in a manner to be prescribed by the State Board of Educa­
tion and the Commissioner of Education, provided, that the 
members of the negro race and white race should not attend 
the same institution or place of learning. The Supreme 
Court of Tennessee has held that Act to be mandatory in 
character. State ex rel. Michael v. Wit-ham, 179 Tenn. (15 
Beeler) 250. Such legislation, specifically requiring equal 
educational training and instruction for white and negro



23

citizens, appears to go further than did some of the State 
Statutes involved in the Supreme Court cases above re­
ferred to, which were not declared unconstitutional in those 
cases. In our opinion, this case does not turn upon the 
unconstitutionality of the state statutes, but presents the 
same issue as was presented to the Supreme Court in Mis­
souri v. Canada, supra, Sipuel v. Board of Regents, supra, 
Sweatt v. Painter, supra, and McLaurin v. Oklahoma State 
Regents, supra, namely, the question of discrimination 
under the equal protection clause of the 14th Amendment. 
Accordingly, this case, at least in its present stage, is one 
for decision by the District Judge, in the district of its 
filing, on the issue of alleged discrimination against the 
plaintiffs under the equal protection clause of the 14th 
Amendment. Such an issue does not address itself to a 
three-judge court. Ex parte Bramford, 310 U. S. 354; 
Ex parte Collins, 277 U. S. 565; Rescue Army v. Municipal 
Court, 331 U. S. 549, 568-574.

The two Judges designated by the Chief Judge of the 
Circuit to sit with the District Judge in the hearing and 
decision of this case do now accordingly withdraw from the 
case, which will proceed in the District Court where it was 
originally filed. See Lee v. Roseberry, 94 Fed. Supp. 324, 
328.



24

UNIITED STATES DISTRICT COURT FOR THE 
EASTERN DIVISION OF TENNESSEE, NORTHERN 
DIVISION

1567
Gene Mitchell Gray, L incoln A nderson Blakeney, J oseph 

H utch P atterson and J ack A lexander, Plaintiffs,

v.

T he B oard oe T rustees of the U niversity of T ennessee, 
E tc., et al., Defendants

Order

Before Miller, Circuit Judge; Darr and Taylor, District
Judges

This case was heard on the record, briefs and argument 
of counsel for respective parties.

And the Court being of the opinion that the issue involved 
is alleged unjust discrimination ag*ainst the plaintiffs under 
the Equal Protection Clause of the Fourteenth Amendment 
of the Constitution of the United States, and not the consti­
tutionality of certain statutes of the State of Tennessee, 
referred to in the pleadings;

And such issue not being one for decision by a three- 
judge court under the provisions of Section 2281, Title 28, 
U. S. Code;

It is ordered that the two Judges designated by the 
Chief Judge of the Circuit to sit with the District Judge, 
in whose District the action was filed, do now withdraw 
from the case, and that the case proceed before said Dis­
trict Judge in the District of its filing.

(S.) Shackelford Miller, J r., 
Circuit Judge;

(S.) L eslie R. Darr,
District Judge;

(S.) R obt. L. T aylor,
District Judge.



25

APPENDIX “B”

IN THE UNITED STATES DISTRICT COURT FOR 
THE EASTERN DISTRICT OF TENNESSEE, 
NORTHERN DIVISION

Civil No. 1567
Gene Mitchell Gray et al.

vs.
U niversity of T ennessee e t al.

This case was heard by a three-judge court on the record, 
briefs and argument of counsel for the respective parties 
on plaintiffs ’ motion for summary judgment in their favor 
under Rule 56 of the Federal Rules of Civil Procedure.

In an opinion by Circuit Judge Miller, in which Chief 
District Judge Darr and District Judge Taylor of the East­
ern District of Tennessee, concurred, the Court held that 
the issue involved is alleged unjust discrimination against 
the plaintiffs under the equal protection clause of the Four­
teenth Amendment of the Constitution of the United States 
and not the constitutionality of the Tennessee statutes and 
constitutional provisions referred to in the complaint. Fol­
lowing this opinion and the order entered pursuant thereto, 
Judge Miller and Judge Darr withdrew from the case, 
which is now before this Court for decision on the motion.

Plaintiffs Gray and Alexander have applied for admis­
sion to the Graduate School and plaintiffs Blakeney and 
Patterson have applied for admission to the College of 
Law, of the University of Tennessee. All admittedly are 
qualified for admission, except for the fact that they are 
negroes.

The matter of their applications was referred by Uni­
versity authorities to the Board of Trustees, who disposed 
of the matter by the following resolution:

“ Whereas, the Constitution and the statutes of the 
State of Tennessee expressly provide that there shall 
be segregation in the education of the races in schools



26

and colleges in the State and that a violation of the laws 
of the State in this regard subjects the violator to 
prosecution, conviction, and punishment as therein pro­
vided; and,

“ Whereas, this Board is bound by the Constitutional 
provision and acts referred to;

“ Be it therefore resolved, that the applications by 
members of the Negro race for admission as students 
into The University of Tennessee be and the same are 
hereby denied.”

Following the indicated action by the Board of Trustees, 
plaintiffs filed their joint complaint for themselves and on 
behalf of all negro citizens similarly situated, praying for 
a temporary and, after hearing, a permanent order restrain­
ing the defendants from executing the exclusion order of 
the Board of Trustees against the plaintiffs, or other ne­
groes similarly situated, and from all action pursuant to the 
constitution and statutes of the State of Tennessee, and the 
custom or usage of the defendants, respecting the require­
ment of segregation of whites and negroes in state-sup- 
ported educational institutions and exclusion of negroes 
from the University of Tennessee, their references being to 
Article 11, sec. 12, of the state constitution, to sections 
2403.1, 2403.3, 11395, 11396, and 11397 of the Tennessee 
Code, and the custom and usage of defendants of excluding 
negroes from all colleges, schools, departments, and divi­
sions of the University of Tennessee, including the Gradu­
ate School and the College of Law.

Defenses interposed are nine in number, but in substance 
they are these: That defendants, in rejecting the applica­
tions of the plaintiffs, were and are obeying the mandates 
of the segregation provisions of the constitution and laws 
of the State of Tennessee; that those provisions are in 
exercise of the police powers reserved to the states and are 
valid, the Fourteenth Amendment and laws enacted there­
under to the contrary notwithstanding, and that these plain­
tiffs have no standing to bring this action for the reason 
that they have not exhausted their administrative remedies 
under the equivalent facilities act of 1941, Code section



27

2403.3. The plaintiffs, after alleging in their complaint that 
the University of Tennessee maintains a Graduate School 
and a College of Law which offer to white students the 
courses sought by plaintiffs, make the following specific 
allegation, which defendants, for failure to deny, admit: 
‘ ‘ There is no other institution maintained or operated by the 
State of Tennessee at which plaintiffs might obtain the 
graduate and/or legal education for which they respectively 
have applied to The University of Tennessee.”

It is, of course, recognized that the Constitution of the 
United States is one of enumerated and delegated powers. 
To remove original doubt as to the character of federal 
powers, the states adopted the Tenth Amendment, which 
provides: “ The powers not delegated to the United States 
by the Constitution, nor prohibited by it to the States, are 
reserved to the States respectively, or to the people.” The 
Constitution contains no specific delegation of police powers, 
and those powers are accordingly reserved. But a glance 
discloses that, in relation to the Tenth Amendment, the 
Constitution contains two groups of powers, namely, the 
previously-delegated powers and the subsequently-delegated 
powers. By adoption of the Fourteenth Amendment, follow­
ing adoption of the Tenth Amendment, the states consented 
to limitations upon their reserved powers, particularly in 
the following respects: “ . . . No State shall make or
enforce any law which shall abridge the privileges or im­
munities of citizens of the United States; nor shall any 
State deprive any person of life, liberty, or property, with­
out due process of law; nor deny to any person within its 
jurisdiction the equal protection of the laws . . . ”

It is recognized that “ the police power of a state extends 
beyond health, morals and safety, and comprehends the 
duty, within constitutional limitations, to protect the well­
being and tranquility of a community.” Kovacs v. Cooper, 
336 U. S. 77, 83. (Italics supplied). States “ have power 
to legislate against what are found to be injurious practices 
in their internal commercial and business affairs, so long 
as their laws do not run a,foul of some specific constitutional 
prohibition, or of some valid federal law." Whitaker v. 
North Carolina, 335, U. S. 525, 536. (Italics supplied).



28

In the foregoing quotations, the italicized portions point 
up the limitations upon the exercise of a state’s police 
powers.

Segregation by law may, in a given situation, be a valid 
exercise of the state’s police powers. It has been so recog­
nized with respect to schools. Gong Lum et al v. Rice et al, 
275 U. S. 78. Also, as to segregation on intrastate trains. 
Plessy v. Ferguson, 163 U. S. 537. But where enforcement 
by the state of a law ran afoul of the Fourteenth Amend­
ment by denying members of a particular race or nationality 
equal rights as to property or the equal protection of the 
laws, the state action has been condemned. This was the 
result where state law discriminated against aliens as to 
the privilege of employment. Truax v. Raich, 239 U. S. 33. 
The same result was reached as to enforcement of restrictive 
covenants in deeds, Shelley et ux v. Kraemer et ux, 334 
U. S. 1; in the housing segregation cases, Richmond v. 
Deans, 4 Cir., 37 F. 2d 712, affirmed 281 U. S. 704; Buchanan 
v. Warley, 245 U. S. 60: and in the cases where segregation 
has resulted in inequality of educational opportunities for 
negroes, Sweatt v. Painter et al, 339 U. S. 629; McLaurin v. 
Oklahoma State Regents, 339 U. S. 637. From these cases 
it appears to be well settled that exercise of the state’s 
police powers ceases to be valid when it violates the pro­
hibitions of the Fourteenth Amendment. The defense on 
this ground, therefore, fails.

The second question is whether the plaintiffs have pres­
ent standing to bring this action. To understand the de­
fense interposed here, it is desirable to look at the historical 
background of the act of 1941, of which the Court takes 
judicial notice.

On October 18,1939, six negroes applied for admission to 
the University of Tennessee, four to the Graduate Depart­
ment and two to the College of Law. Being denied admis­
sion, they filed their separate petitions for mandamus in 
the Chancery Court of Knox County, Tennessee, to require 
their admission. Following denial of the petitions in a 
consolidated proceeding, an appeal was taken to the Su­
preme Court of Tennessee, where the action of the Chan­
cellor was affirmed by opinion filed November 7, 1942. State



29

ex rel. Michael et al. v. Withaxn et ah, 179 Tenn. 250. The
case was not disposed of by the Chancellor on its merits, 
but on the ground that it had become moot. While the case 
was pending in the Chancery Court, the state legislature 
enacted the act of 1941, now carried in the Code as sec. 
2403.3, and entitled, Educational facilities for negro citizens 
equivalent to those provided for white citizens:

“ The state board of education and the commissioner 
of education are hereby authorized and directed to 
provide educational training and instruction for negro 
citizens of Tennessee equivalent to that provided at the 
University of Tennessee by the State of Tennessee for 
white citizens of Tennessee. Such training and instruc­
tion shall be made available in a manner to be pre­
scribed by the state board of education and the com­
missioner of education; provided, that members of the 
negro race and white race shall not attend the same 
institution or place of learning. The facilities of the 
Agricultural and Industrial State College, and other 
institutions located in Tennessee, may be used when 
deemed advisable by the state board of education and 
the commissioner of education, insofar as the facilities 
of same are adequate.”

Following enactment of the statute a supplemental answer 
was filed in the case then pending, in which it was averred 
that pursuant to the Act certain committees had been 
appointed by the state board of education, with instructions 
to report at the board’s next regular meeting, an averment 
which suggested that the act of 1941 was to be made opera­
tive expeditiously.

The Supreme Court of Tennessee, in affirming the Chan­
cellor’s dismissal of the consolidated case, construed the 
act of 1941 to be mandatory in character. “ No discretion 
whatever is vested in the State Board of Education under 
the Act as to performance of its mandates. The manner 
of providing educational training and instruction for negro 
citizens equivalent to that provided for white citizens at the 
University of Tennessee is for the Board of Education to 
determine in its sound discretion, but the furnishing of such



30

equivalent instruction is mandatory.” State ex rel. Micliael 
et al. v. Witham et al., 179 Tenn. 250, 257.

The court also said at page 257: “ Upon the demand of a 
negro upon the State Board of Education for training and 
instruction in any branch of learning taught in the Univer­
sity of Tennessee, it is the duty of the Board to provide such 
negro with equal facilities of instruction in such subjects 
as that enjoyed by the students of the University of Ten­
nessee. The State Board of Education is entitled to rea­
sonable advance notice of the intention of a negro student 
to require such facilities . . .  No such advance notice by 
appellants is shown in the record.”

At page 258, the court further said: “ It does not appear 
that the State Board of Education is seeking in any way to 
evade the performance of the duties placed upon it by Chap­
ter 43, Public Acts 1941, or that it is lacking sufficient funds 
to carry out the purposes of the Act. The state having 
provided a full, adequate and complete method by which 
negroes may obtain educational training and instruction 
equivalent to that provided at the University of Tennessee, 
a decision of the issues made in the consolidated causes be­
comes unnecessary and improper. The legislation of 1941 
took no rights away from appellants; on the contrary the 
right to equality in education with white students was 
specifically recognized and the method by which those rights 
would be satisfied was set forth in the legislation. What 
more could be demanded!”

By failure to deny the allegations of the complaint, de­
fendants admit that the directive, though mandatory, has 
not been carried out. Nevertheless, it is urged by defend­
ants that these plaintiffs have no standing here until they 
have petitioned the state board of education to furnish the 
equivalent educational training and instruction for negroes 
provided for by the act. The Supreme Court of the state 
noted in its opinion that the then applicants for admission 
to the University of Tennessee had given to the state board 
“ no such advance notice” of a desire to be furnished facil­
ities under the act. That omission is understandable here 
for the reason that their applications for admission to the 
University of Tennessee had not been finally disposed of by



31

the courts, and the need of their applying* to the state board 
had not been established.

Since the enactment of the Act of 1941 and the decision 
in State ex rel. Michael et al. v. Witham et al., 179 Tenn. 250, 
the Supreme Court of the United States has emphasized the 
pronouncement of one of its older cases as to a particular 
element of equal protection. In Missouri ex rel. Gaines v. 
Canada, 305 U. S. 337, it appeared that Lincoln University, 
a state-supported school for negroes, intended to establish 
a law school. As to this intention the court said: “ . . . it 
cannot be said that a mere declaration of purpose, still 
unfulfilled, is enough.” Missouri ex rel. Gaines v. Canada, 
305 U. S. 337, 346. In the same case, at page 351, the court 
said: “ Here, petitioner’s right was a personal one. It was 
as an individual that he was entitled to the equal protection 
of the laws, and the State was bound to furnish him within 
its borders facilities for legal education substantially equal 
to those which the State there afforded for persons of the 
white race, . . . ” Later declarations indicate that the two 
quotations should be read together and that when so read 
they state the requirement of equality of opportunity to be 
personal and immediate.

In Fisher v. Hurst, 333 U. S. 147, the court emphasized its 
position that equality of opportunity in education means 
present equality, not the promise of future equality. This 
re-emphasized the necessity of equality as to time of an 
earlier decision, where the court said: “ 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.” Sipuel v. 
Board of Regents of the University of Oklahoma et al., 332 
U. S. 631. In the holding in McLaurin v. Oklahoma State 
Regents, 339 U. S. 637, 642, the court said: “ We conclude 
that the conditions under which this appellant is required 
to receive his education deprive him of his personal and 
present right to the equal protection of the laws.” That 
equality of educational opportunity for negroes means 
present equality was emphasized once more in Sweatt v. 
Painter et al., 339 U. S. 629, 635: “ This Court has stated 
unanimously that ‘The State must provide (legal education)



32

for (petitioner) 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’. Sipuel v. 
Board of Regents, 332 U.S. 631, 633.” In view of these 
recent declarations of the Supreme Court of the United 
States, this Court is forced to conclude that the defense of 
exhaustion of administrative remedies fails.

The Court finds that under the Gaines, Sipuel, Sweatt and 
McLaurin cases heretofore cited, these plaintiffs are being 
denied their right to the equal protection of the laws as pro­
vided by the Fourteenth Amendment and holds that under 
the decisions of the Supreme Court the plaintiffs are en­
titled to be admitted to the schools of the University of 
Tennessee to which they have applied for admission. Be­
lieving that the University authorities will either comply 
with the law as herein declared or take the ease up on 
appeal, the Court does not deem an injunctive order pres­
ently to be appropriate. The case, however, will be retained 
on the docket for such orders as may seem proper when it 
appears that the applicable law has been finally declared.

(S.) R obt. L. T aylor, 
United States District Judge.



Office-Supreme Court, U. S. 
TILED

JUN 15 1351

I CHARLES £Uv:
S U P R E ME  EOURT OF THE U N I T E D - S T A T E S

OCTOBER TERM, 1951

N o .  1 2 0

GENE MITCHELL GRAY, LINCOLN ANDERSON 
BLAKENEY, JOSEPH HUTCH PATTERSON, and  
JACK ALEXANDER, Appellants,

vs.

THE BOARD OF TRUSTEES OF THE UNIVERSITY 
OF, TENNESSEE, ETC., ET AL.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 
EASTERN DISTRICT OF TENNESSEE

STATEMENT BY APPELLEES OF GROUNDS IN OP­
POSITION TO APPELLATE JURISDICTION OF THE 
SUPREME COURT OF THE UNITED STATES PUR­
SUANT TO SUPREME COURT RULE 12, AND MO­
TION TO DISMISS APPEAL.

The appellees state the following matters and grounds 
against the jurisdiction of the Supreme Court of the United 
States, as asserted by the appellants herein in their state­
ment of the basis of the appellate jurisdiction, filed herein



2

on the 7th day of May, 1951, as required by Rule 12 of the 
Supreme Court:

I

This case was not a proper case for the consideration of 
a three-judge court. In support of this contention, the ap­
pellees cite the following cases: Ex Parte Bransford, 310 
U. S. 354; Ex Parte Collins, 277 U. S. 565; Rescue Army v. 
Municipal Court, 331 U. S. 549, 568-574. Consequently, no 
direct appeal lies to the Supreme Court under Title 28, 
United States Code, Sections 1253 and 2101(b). (See also 
the opinion of the District Court of three Judges for the 
Eastern District of Tennessee in this cause, filed on April 
13, 1951, which has not yet been reported but a copy of 
which is attached as Appendix A to the appellants’ state­
ment and petition for the allowance of an appeal to the 
Supreme Court filed herein.)

II
The opinion of the District Court of three Judges for the 

Eastern District of Tennessee, filed on April 13, 1951, in 
this cause and the order entered pursuant thereto shows 
that the question involved in this case is the alleged unjust 
discrimination against the plaintiffs under the Equal Pro­
tection Clause of the Fourteenth Amendment of the Con­
stitution of the United States, and not the constitutionality 
of certain statutes of the State of Tennessee, or the order 
of the Board of Trustees of the University of Tennessee, 
referred to in the pleadings.

III
The pleadings in this cause show that the real question 

presented is whether or not the plaintiffs exhausted their 
administrative remedies as provided by Chapter 43 of the 
Public Acts of Tennessee of 1941, and hence no constitu­



3

tional question was presented for determination by a three- 
judge court,. Accordingly, no direct appeal lies to the 
Supreme Court.

IV
The right of the plaintiffs to appeal is not to the Supreme 

Court but to the Court of Appeals for the Sixth Circuit.

V
The record discloses that the defendants prayed no ap­

peal from the opinion and judgment of the District Court 
for the Eastern District of Tennessee, Northern Division, 
filed on April 20, 1951. Consequently, the questions sought 
to be presented by the plaintiffs in their application to ap­
peal fo the Supreme Court are now moot for the reason 
that said opinion and judgment of the District Court will 
become final prior to the filing of this record with the 
Supreme Court of the United States, entitling plaintiffs 
to the relief provided by said opinion and order of the 
District Court.

W h e r e f o r e , the appellees move the Court to dismiss the 
appellants’ petition for the allowance of an appeal to the 
Supreme Court.

Dated: May 17, 1951.
Respectfully submitted,

K. H arlan D odson, J r.,
J ohn J . H ooker,

By (S.) J ohn J . H ooker,
Attorneys for Appellees.

(5571)