Correspondence from Lani Guinier to Frank Parker, Esq. Re Thornburg v. Gingles Amicus Brief

    IN' THE

uptime Court of tljr llmlrtt ^tatro
October T erm, 1951

No. 120

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,

Appellees.

Appeal F rom the U nited States District Court for the 
E astern D istrict of T ennessee

BRIEF FOR APPELLANTS

R obert L, Carter,
Carl A. Cowan,
T hurgood Marshall,

Counsel for Appellants.
7 . Alexander L ooby,
Avon N. W illiams, J r.,

Of Counsel.

J udicial P rin tin g  Co.» in g ., 82 Beekman S t., N . Y.-—BEekm an 3-9084-5-6 J.82



I N D E X

PAGE

Opinions Below............................................................... 1
Jurisdiction..............    2
Statement of the C ase ...................................................  2
Errors Belied U pon ...........................    6
Summary of Argum ent.................................................. 7
Argument....................................................................   io
I—Appellants are entitled to admission to the Uni­

versity of Tennessee subject only to the same rules 
and regulations applicable to all other students . . .  10

II—This case is one in which a three-judge court has 
jurisdiction and in which review by this Court on
direct appeal is w arranted..................................... 12

Conclusion........................................................................ 17

Cases Cited

American Federation of Labor v. Watson, 327 U. S.
582 ........................................................................... 14,16n

American Insurance Co. v. Lucas, 314 U. S. 575 . . . .  15
Ayshire Collieries Corp. v. United States, 331 U. S. 132 17
Bader, In re, 271 U. S. 4 6 1 ..........................................  14
Berea College v. Kentucky, 211 U. S. 4 5 ......................  13
Board of Supervisors, La. State University v. Wilson,

340 U. S. 909; rehearing denied 340 U. S. 939__10,13,15
Burford v. Sun Oil Co., 319 U. S. 315 ........................  14
Chicago v. Fieldcrest Dairies, Inc., 316 U. S. 168 .. 14,16n



11 I N D E X

PAGE

Ex parte Collins, 277 U. 8. 565 ..................................... 16
Exparte Hobbs, 280 U. S. 1 68 ............................. . 14
Ex parte Metropolitan Water Co., 220 U. S. 539 .........  17
Ex parte Northern Pacific Ry., 280 U. S. 142 . . . . . . . .  17
Ex parte Williams, 277 U. S. 267 ................................16,17
General Electric Co. v. Marvel Rare Metals Co., 287

U. S. 430 ...................................................................... 17
Gong Lum v Rice, 275 U. S. 7 8 ..................................... 13
Grubb v. Public Utilities Commission, 281 U. S. 470.. 15
Gully v. Interstate Natural Gas Co., 292 U. S. 16 . . . .  15
International Garment Workers Union v. Donnelly 

Garment Co., 304 U. S. 243 ......... .....................14,15,16
Jameson & Co. v. Morgen than, 307 U. S. 1 71 .............  15
McCabe v. Atcheson, T. & S. F. Ry. Co., 235 U. S. 151.. 13 
McKissick v. Carmichael, 187 F. 2d 949 (4th Cir. 1951);
Moore v Fidelity & Deposit Co., 272 U. S. 317.............  14
McLaurin v. Board of Regents, 339 U. S. 637 ....... 8,10,11,

13,14,15
Missouri ex rel. Gaines v. Canada, 305 U. S. 337 ...10,13,14
Oklahoma Gas & Electric Co. v. Oklahoma Packing Co.,

292 U. S. 386 .............................................................14,15
Oklahoma Natural Gas Co. v. Russell, 261 U. S. 290.. 14
Pendergast v. United States, 314 U. S. 574 ................. 15
Phillips v. United States, 312 U. S. 246 ........................  14
Plessy v. Ferguson, 163 U. S. 537 ......................8,11,12,13
Public Service Commission of Missouri v Brashear 

Freight Lines, Inc., 312 U. S. 784 ............................ 15
Query v. United States, 316 U. S. 486 ........................  14
Railroad Commisssion of Texas v. Pullman, 312 U. S.

496 ................................................................................ 16n
Rice v. Arnold, 340 U. S. 848 . . . . ...................... ........ 12



I N D E X iii

PAGE

Riis & Co. v. Hocli, 99 F. 2d 553 (10th Cir. 1938)........ 16
Sipuel v. Board of Regents, 332 IT. S. 631.................. 10,13

cert. den. 341 U. 8. 951 ...................................... 10
Smith v. Dudley, 89 F. 2d 453 (8th Cir. 1937) .............  16
Smith v. Wilson, 273 U. S. 388 ..................................... 14
Spector Motor Service v. McLaughlin, 323 U. S. 101.14,16n
Sprunt & Son v. United States, 281 U. S. 249 .............  15
Stratton v. St. Louis S. W. Rv. Co., 282 U. S. 10 .. .14,16,17 
Sweat! v. Painter, 339 U. S. 629 .......................8,10,11,13
Thompson v. Magnolia Petroleum Co., 309 U. S. 478.. 16n

Statutes Cited

Tennessee Code, Sections 11395, 11396, 11397 . . . . . . 4 ,  7,12
Tennessee Constitution, Article 11, Section 12. . . .  3, 4, 7,12
United States Code, Title 28, Sections 1253 and 

2101(h) ........................................................................ 2,9
United States Code, Title 28, Sections 2281 and

2284 ............................................................. 5,6,7,8,13,15
United States Constitution, Fourteenth Amendment.5, 7,11

Other A uthorities

Berueffy, The Three Judge Federal Court (1942), 15
Rocky Mt. L. Rev. 6 4 ...................................... . l ln

Bowen, When are Three Judges Required (1931), 16 
Minn. L. Rev. 1, ................................................... lln , 15

Frankfurter, Distribution of Judicial Power Between 
United States and State Courts (1928), 13 Conn.
L. Q. 499 ............................................................ 16n



IV I N D E X

PAGE

Hutcheson, A. Case For Three Judges (1934) 47 
Harv. L. Rev. 795 .............................................. . l ln

Lockwood, Maw and Rosenberry, The Use of the Fed­
eral Injunction in Constitutional Litigation (1930),
43 How. L. Rev. 426 .................................................. 16n

Notes in 28 111. L. Rev. 839 (1934) ..............................  l ln
Notes in 32 Mich. L. Rev. 853 (1934) .............   l ln
Notes in 38 Yale L. J. 955 (1929) ................................  l ln
Pogue, State Determination of State Law and the 

Judicial Code (1928), 41 Harv. L. Rev. 623 .........  16n



I N THE

Bnpvtm? (tort at % Imtrft BUtta
October T erm, 1951 

No. 120

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

Appellants, 
vs.

T he B oard op Trustees of the U niversity of T ennessee,
etc., et al.,

Appellees.

B R IEF FO R  A PPELLA N TS

Opinions Below

After notice and hearing, the statutory three-judge 
District Court for the Eastern District of Tennessee dis­
claimed jurisdiction as a statutory three-judge court and 
remanded the cause for proceedings before a single judge. 
An opinion setting forth the reasons for this action was 
filed on April 13, 1951, and appears at pages 35-40 of the 
record. It is not officially reported.

Without further hearing or notice to the parties, Dis­
trict Judge R obert L. Taylor, in whose district the com­
plaint had been filed, on April 20, 1951, filed an opinion in 
which he found that appellants had been denied the equal 
protection of the laws but refused to grant affirmative 
relief. The cause was retained “ for such orders as may



o

be proper when it appears that the appropriate law has 
been finally declared. ’ ’ That opinion is reported in 97 F. 
Supp. 463 and may be found at pages 40-47 of this record.

Jurisdiction

Jurisdiction of this Court is invoked under Title 28, 
United States Code, Sections 1253 and 2101(b), this being 
a direct appeal from an order which, in effect at least, 
denied, after notice and hearing, appellants’ application 
for a preliminary and permanent injunction to restrain 
the enforcement by appellees of constitutional and statu­
tory provisions of the State of Tennessee, and a Decem­
ber 4, 1950 order of the Board of Trustees of the Uni­
versity of Tennessee, on the grounds that these aforesaid 
provisions and order deny to appellants the equal protec­
tion of the laws as secured by the Fourteenth Amendment 
to the Constitution of the United States.

Appellants in their complaint contested the constitution­
ality of these provisions and order, and injunctive relief 
was specifically sought (R. 1-20). In their answer, appel­
lees defended their refusal to admit appellants to the Uni­
versity of Tennessee on the grounds that they had no other 
recourse under the constitution and statutes of the state 
(R. 25-27). Thus, the constitutionality of the order of an 
administrative agency and of laws of the State of Ten­
nessee wms squarely in issue.

S ta tem en t of the  Case

Appellants, having met all lawful requirements, made 
due and proper application for admission to the graduate 
and law schools of the University of Tennessee. Gene 
Mitchell Gray sought permission to enroll in the graduate 
school commencing in the fall quarter of 1950, and Jack



3

Alexander desired approval of Ms application for enroll­
ment in the graduate school beginning in the winter quarter 
of 1951. Both Lincoln Anderson Blakeney and Joseph 
Hutch Patterson desired to enroll in the first-year class of 
the law school in the winter quarter of 1951 (R. 9).

The University of Tennessee is the only state institution 
offering the courses appellants desire to pursue, and they 
would have been admitted except for the fact that they are 
Negroes (R. 6). On December 4, 1950, appellees, the Board 
of Trustees of the University of Tennessee, met and denied 
appellants ’ application solely because of their color (R. 14). 
Its action was embodied in the following formal order:

“ 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 violation 
of the laws of the State in this regard subjects the 
violator to prosecution, conviction, and punishment 
as therein provided; and,

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

“ Be it therefore resolved, that the applications 
by members of the Negro race for admission as stu­
dents into The University of Tennessee be and the 
same are hereby denied” (R. 14).

The applicable state constitution and statutory provi­
sions upon which the above order vras based a re :

Article 11, Section 12 of Constitution of Tennessee
“ . . . And the fund called the common school 

fund, and all the lands and proceeds thereof . . . 
heretofore by law appropriated by the General As­
sembly of this State for the use of common schools, 
and all such as shall hereafter be appropriated, shall 
remain a perpetual fund, . . . and the interest thereof 
shall be inviolably appropriated to the support and 
encouragement of common schools throughout the



4

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
“ . . . 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
. . It shall be unlawful for any teacher, pro­

fessor, or educator in any college, academy, or school 
of learning, to allow the white and colored races to 
attend the same school, or for any teacher or edu­
cator 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 places of 
learning, or allow or permit the same to be done with 
their knowledge, consent or procurement.”

and
Section 11397 of the Code

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

Appellants thereupon filed on January 12, 1951, a com­
plaint in the court below in the nature of a class suit, in 
which application was made for both a preliminary and a 
permanent injunction to restrain the enforcement of the 
December 4th order of the Board of Trustees, Article 11, 
Section 12 of the Constitution and Sections 11395, 11396 
and 11397 of the Code of Tennessee, on the grounds that 
the aforesaid order and provisions under attack deprived



5

appellants of rights secured under the Fourteenth Amend­
ment to the Constitution of the United States (R. 1-20).

On February 1, 1951, appellees filed their answer in 
which no material allegations in appellants ’ complaint were 
controverted and in which the denial of appellants’ admis­
sion to the University of Tennessee was defended on the 
grounds that such denial was required by the constitution 
and statutes of the state (R. 25-27).

On February 12, 1951, appellants filed a motion for 
judgment on the pleadings (R. 28). The court, below, which 
had been convened pursuant to Title 28, United States 
Code, Sections 2281 and 2284 (R. 28-29), held a hearing in 
Knoxville, Tennessee, on March 13, 1951, and on April 13, 
1951, handed down an opinion in which jurisdiction was 
disclaimed, the three-judge court was ordered dissolved 
and the cause ordered to proceed before District Judge 
R obert Taylor in whose district the complaint had been 
filed (R. 35-40).

On April 20, 1951, Judge T aylor ruled that appellees’ 
refusal to admit appellants to the University of Tennessee 
constituted a denial of the equal protection of the laws but 
refused to issue any affirmative order in enforcement 
of appellants’ rights (R. 40-47). Appellants thereupon 
brought the cause here on direct appeal. This Court, on 
October 15, 1951, ordered a hearing on the merits, post­
poning further consideration of jurisdiction and the motion 
to dismiss pending such hearing (R. 53).



6

Errors R elied U pon

T h e  c o u r t below  e r re d :

1. In  re fu s in g  to  g ra n t  a p p e lla n ts ’ m o tio n  fo r  ju d g m e n t 
on th e  p le a d in g s  in  th a t  a p p e lle e s ’ o rd e r , re fu s in g  a p p e l­
la n ts ’ ad m issio n  to  th e  U n iv ersity  o f T en n essee , so lely  
b ec au se  o f th e ir  co lor, m a d e  p u rs u a n t to  th e  co n stitu tio n  
a n d  s ta tu te s  o f T en n essee  w as a n  u n c o n s titu tio n a l d e p r iv a ­
tio n  o f a p p e lla n ts ’ r ig h ts .

2. In  h o ld in g  th a t  th e  issues ra is e d  d id  n o t involve th e  
co n s titu tio n a l ity  o f th e  co n s titu tio n  a n d  s ta tu te s  o f th e  S ta te  
o f T en n essee  a n d  o f th e  o rd e r  o f th e  a p p e lle e s  as a n  a d m in ­
is tra tiv e  ag e n cy  o f th e  s ta te , fo r  th e  re a so n  th a t  in  th e  
o rd e r  re fu s in g  a p p e lla n ts  ad m issio n  a n d  in th e ir  a n sw e r to  
a p p e lla n ts ’ co m p la in t, a p p e lle e s  seek  to  ju s tify  th e ir  re fu s a l 
on  th e  g ro u n d s  th a t  th e  co n s titu tio n  a n d  s ta tu te s  o f T en ­
n essee  m a k e  m a n d a to ry  th e ir  d en ia l o f a p p e lla n ts ’ a p p lic a ­
tions.

3. In re fu s in g  to  g ra n t  a p p e lla n ts ’ a p p lic a tio n  fo r  a  
te m p o ra ry  a n d  p e rm a n e n t in ju n c tio n  as p ra y e d  fo r  in  th e ir  
co m p la in t.

4. In  h o ld in g  th a t  th is  cau se  does n o t com e w ith in  th e  
ju r isd ic tio n  o f a  d is tr ic t c o u rt o f th re e  ju d g e s  as su ch  ju r is ­
d ic tio n  is defined  in  T itle  28, U n ited  S ta te s  C ode, S ections 
2281 a n d  2284.

5. In  o rd e r in g  th e  d isso lu to n  o f th e  th re e - ju d g e  c o u r t 
a n d  in  re m a n d in g  th e  cau se  to  D is tric t J u d g e  R o b e rt T ay lo r 
s ittin g  a lo n e , s ince u n d e r  T itle  28, U n ited  S ta te s  C ode, Sec­
tions 2281 a n d  2284, a  s in g le  D is tr ic t J u d g e  is w ith o u t 
p o w e r a n d  a u th o r ity  to  g ra n t  o r d en y  th e  in ju n c tiv e  re lie f  
h e re in  p ra y e d  fo r.



7

Sum m ary of A rgum ent

On December 4, 1950, appellees, the Board of Trustees 
of the University of Tennessee, issued a formal order deny­
ing appellants’ admission to the graduate school and law 
school of the University of Tennessee, because of their race. 
This action was taken pursuant to Article 11, Section 12 
of the Constitution and Sections 11395, 11396 and 11397 
of the Code of Tennessee. These provisions make it un­
lawful for white and Negro persons to attend the same 
school or college, and violators are subject to criminal 
prosecution. Appellants contend that the order, the con­
stitutional and statutory provisions conflict with the Four­
teenth Amendment to the Constitution of the United States 
and are, therefore, invalid. Application for injunctive re­
lief to restrain enforcement by appellees of this unconsti­
tutional state policy was made in the lower court pursuant 
to Title 28, United States Code, Section 2281. Appellees 
rely upon Article 11, Section 12 of the Constitution and 
Sections 11395, 11396 and 11397 of the Code as a complete' 
defense, and allege that they have no recourse other than 
to refuse to admit appellants to the University of Tennessee 
because of these state provisions.

Although actually upholding the constitutionality of 
Article 11, Section 12 of the Constitution and Sections 
11395, 11396 and 11397 of the Code, the court below ruled, 
that appellants’ right to contest this question in a pro­
ceeding of this nature had been foreclosed by decisions of. 
this Court sustaining the constitutionality of state laws 
requiring racial segregation. In effect, the court found 
that appellants’ claim that the state’s policy was unconsti­
tutional was not substantial. The only issue which appel­
lants could raise, or had raised according to the court 
below, was one of “ unjust discrimination . . . under the 
Equal Protection Clause .. . and not the constitutionality of 
certain statutes of the state of Tennessee” (R. 39-40). On



8

this basis, it was held that the jurisdictional requirements 
fo r a district court of three judges under Title 28, United 
States Code, Section 2281, had not been met; the three- 
judge court was ordered dissolved and the cause remanded 
fo r proceedings before Judge Taylor.

We are confident that the court was in error and that 
all the requisite requirements essential to the jurisdiction 
of a three judge federal court have been met. Appellants’ 
claim of unconstitutionality is that they have been and are 
being denied educational opportunities and advantages by 
the state equal to those available to all other persons. That 
this allegation presents a substantial federal question can 
hardly be open to doubt at this stage of the development 
of our law.

While there is sharp disagreement between appellants 
and the court below with respect to interpretation of the 
substantive law determinative of appellants’ rights, what­
ever view one takes, we submit, he is forced to conclude 
that the jurisdictional requirements for a three judge court 
have been met in this case.

We interpret the Sweatt and McLaurin cases to mean 
that a state cannot enforce distinctions based upon race 
with respect to graduate and professional education avail­
able in state institutions. While Pless'if v. Ferguson was 
not overruled, whatever may be the impact of the separate 
but equal doctrine on the state’s power to impose racial 
classifications and distinctions in general, in the area of 
state graduate and professional education, that doctrine 
is now totally without significance. The court below has 
taken this Court’s discussion of Plessy v. Ferguson in the 
Sweatt case to mean that enforced racial segregation in 
state graduate and professional schools is still valid under 
the separate but equal doctrine. In view of this unrecon- 
cilable conflict in interpretation we hope the Court will 
use this occasion to clarify the question once and for all.



9

The real problems involved in this appeal are pro­
cedural—whether appellant may seek review of the action 
of the court below on direct appeal or by petition for writ 
of mandamus. Persuasive considerations tend to support 
either remedy. Our position is that this Court has juris­
diction on appeal, but if it does not, mandamus will lie.

Title 28, United States Code, Section 1253, grants a 
direct appeal to this Court from a grant or denial of a 
preliminary or permanent injunction by a three judge court. 
Had the court below dismissed appellants’ complaint or 
expressly denied their application for injunctive relief, 
there would be no question concerning the jurisdiction of 
this Court on direct appeal. Here, however, the court’s 
order did not directly do either of those things. It merely 
dissolved the three judge court and remanded the cause to 
Judge T aylor sitting alone for further proceedings. This 
being an appropriate case for a three judge federal court, 
a single federal judge is without power to grant appellants 
the relief for which they have applied. By dissolving the 
only court having jurisdiction of the case, the lower court 
made it impossible for appellants to secure injunctive re­
lief. Appellants’ application for a preliminary and perma­
nent injunction has been denied, therefore, as effectively 
as if a judgment expressly denying the injunction or dis­
missing the complaint had been entered. For those reasons 
this Court has jurisdiction to review this case on direct 
appeal.



1 0

ARGUMENT

I

Appellants are entitled to admission to toe Uni­
versity of Tennessee subject only to the same rules and 
regulations applicable to all other students.

The substantive rights which appellants are here seek­
ing to enforce have been conclusively determined by prior 
decisions of this Court. A state cannot deny educational 
facilities to one racial group while offering it to others; and 
where such facilities are available in only one state institu­
tion, Negroes cannot be barred by the state from attending 
that institution pursuant to a policy of enforced racial 
separation. Missouri ex rel. Gaines v. Canada, 305 U. S. 
337. When educational facilities are offered to white per­
sons, they must be offered to Negroes at the same time. 
Sipuel v. Board of Regents, 332 U. S. 631. A state can­
not impose a policy of racial separation or make any other 
distinctions grounded in race or color with respect to pro­
fessional and graduate education offered at state universi­
ties. In short, all persons meeting the requirements for 
admission are entitled to attend graduate and professional 
schools of state universities subject only to same rules and 
regulations applicable to all other persons. Stveatt v. 
Painter, 339 U. S. 629; McLaurin v. Oklahoma, 339 IT. S. 
637; Board of Supervisors, La. State University v. Wil­
son, 340 U. 8. 909; rehearing den. 340 U. S. 939; McKissick 
v. Carmichael, 187 F. 2d 949 (4th Cir. 1951); cert, denied 
341 U. S. 951. From the cases it is clear, therefore, that any 
state action, whether in the form of an order of an admin­
istrative agency, constitutional provision or statute which 
prohibits appellants’ admission to the University of Ten­
nessee is unconstitutional and void.



While this Court did not specifically strike down the 
segregation statutes and laws of Texas and Oklahoma 
under which those states sought to impose a policy of racial 
segregation with respect to their graduate and professional 
schools, the Court declared such policy void and unconsti­
tutional. See McLaurin and Sweatt cases. The only pos­
sible effect of those decisions was that such laws were no 
longer operative.

It is true that the Court stated in Sweatt case at pages 
635, 636 that it could not “ agree with respondents that the 
doctrine of Plessy v. Ferguson, 163 IT. S. 537 .. . requires af­
firmation of the judgment below. Nor need we reach peti­
tioner’s contention that Plessy v. Ferguson should he reex­
amined in the light of contemporary knowledge respecting 
the purposes of the Fourteenth Amendment and the effects 
of racial segregation. See supra, page 631.” At that page 
the Court said that McLaurin and Sweatt cases “ present 
different aspects of this general question: To what extent 
does the Equal Protection Clause of the Fourteenth Amend­
ment, limit the power of a state to distinguish between 
students of different races in professional and gradu­
ate education in a state university? Broader issues have 
been urged for our consideration, but we adhere to the 
principle of deciding constitutional questions only in the 
context of the particular case before the Court.” The 
Court found that, the segregated law school in the Sweatt 
case and the special rules and regulations imposed because 
of race in the McLaurin case deprived both of equal edu­
cational opportunities as required by the Fourteenth 
Amendment. On reading the two cases it is clear that the 
Court means that the constitutional requirement that equal 
educational opportunities he afforded cannot be met in 
graduate and professional schools where the state seeks to 
enforce racial distinctions and seeks to treat persons dif­
ferently because of race. Hence, the Fourteenth Amend­



1 2

ment denies to the state the power to make racial distinc­
tions or classifications with respect to that phase of the 
state’s educational process.

The statement quoted above with respect to Plessy v. 
Ferguson, which the court below interprets as “ eliminat­
ing from the case the question of constitutionality of the 
State statute which restricted admission to the University 
to white students” (R. 38-39), was intended to emphasize 
that the Court’s decisions specifically concerned graduate 
and professional education only. But see Rice v. Arnold, 
340 U. S. 848. Whatever present weight the separate but 
equal doctrine may carry, it is clear that it can no longer 
be used to determine whether equality of educational op­
portunities in graduate and professional education is avail­
able. Here where state laws seek to deny appellants ad­
mission to graduate and professional schools of the state 
university, they are clearly unconstitutional. The court 
below believes them to still have vitality. We think the 
Court should take this opportunity to clarify this point.

II

This case is one in w hich a  th ree-judge court has 
ju risd ic tion  and  in w hich review  by th is C ourt on d i­
rec t appeal is w arran ted .

A preliminary and a permanent injunction to restrain 
the enforcement of appellees’ order of December 4, 1950, 
refusing to admit appellants to the University of Tennes­
see pursuant to Article II, Section 12 of the Constitution 
of the State and Sections 11395, 11396, and 11397 of the 
Code of Tennessee is here being sought on the grounds 
that the order, constitutional provision and statutes de­
prive appellants of their rights to equal educational op­
portunities as secured under the Fourteenth Amendment



13

to the Constitution of the United States. Appellees are 
state officers, Missouri ex rel. Gaines v. Canada; supra, and 
the Board of Trustees of the Universitj7 of Tennessee is an 
administrative board within the meaning of Title 28, United 
States Code, Sections 2281 and 2284. McLaurin v. Board 
of Regents, supra; Board of Supervisors, La. State Uni­
versity v. Wilson, supra. Appellants’ claim of unconstitu­
tionality presents a substantial federal question. Sweatt 
v. Painter, supra; Sipuel v. Board of Regents, supra.

The court below seeks to redefine the issues raised by 
describing them as allegations of unjust discrimination 
under the equal protection clause rather than of constitu­
tionality of state segregation statutes. The court stated 
that state legislation requiring segregation was not uncon­
stitutional because of the feature of segregation. Plessy 
v. Ferguson, supra; McCabe v. Atcheson, T. & S. F. Ry. Co., 
235 U. S. 151; Berea College v. Kentucky, 211 U. S. 45; and 
Gong Lum v. Rice, 275 U. S. 78 are cited in support of 
this contention. It is alleged that Sweatt v. Painter did 
not change this rule. What we take the court to mean is 
that in the light of these decisions appellants’ claim that 
the state policy is unconstitutional has been foreclosed and 
that hence that claim does not present a substantial federal 
question.

We have already attempted to point out that the court 
was in error in its analysis of the Sweatt case. We cannot 
accept in toto either the court’s analysis of the other cases 
and do not believe them to be applicable to this case. Even 
assuming arguendo, however, the correctness of the court’s 
view, we fail to see how it affects appellants ’ right to have 
their applications for injunctive relief heard and deter­
mined by a three judge court. At the very least those 
cases stand for the proposition that enforced racial segre­
gation is permissible as long as the facilities provided 
Negroes are equal to those available to other racial groups.



14

This is the condition which must be satisfied if segregation 
laws are to be held constitutional under the separate but 
equal doctrine. Ergo, where that condition has not been 
met, the segregation is unconstitutional. Certainly where 
the record shows that the University of Tennessee is the 
only state institution offering the courses appellants desire 
to pursue; that they have been denied admission thereto 
solely because of their race pursuant to state policy; and 
appellants seek to enjoin enforcement of that policy on the 
grounds that it conflicts with the federal constitution, a 
substantial claim of unconstitutionality has been made. 
See Missouri ex rel Gaines v. Canada, supra.

Thus all ingredients essential to the jurisdiction of a 
three judge federal court have been met. See Stratton v. 
St. Louis S. W. Ry. Co., 282 U. S'. 10 ; Smith v. Wilson, 273 
U. S. 388; Moore v. Fidelity & Deposit Co, 272 U. S. 317; 
International Garment Workers Union v. Donnelly Garment 
Co., 304 U. S. 243; Ex parte Hobbs, 280 U. S. 168; Phillips 
v. United States, 312 U. S. 246; Oklahoma Gas & Electric 
Co. v. Oklahoma Packing Co., 292 IT. S. 386; Ex parte 
Poresky, 290 U. S. 30; In re Buder, 271 IT. S'. 461; Oklahoma 
Natural Gas Co. v. Russell, 261 U. S. 290; Query v. United 
States, 316 U. S. 486; American Federation of Labor v. 
Watson, 327 IT. S. 582.1 Of course, equity jurisdiction 
may be withheld in the public interest in exercise of sound 
discretion, see Spector Motor Service v. McLaughlin, 323 
IT. S. 101; Chicago v. Fieldcrest Dairies, Inc., 316 U. S. 168; 
Burford v. Sun Oil Co., 319 U. S'. 315; but the public inter­
est in this case demands that the chancellor exercise his 
power. See McLaurin v. Board of Regents, supra.

Decisions of a properly convened three judge court may 
be reviewed by this Court on direct appeal, and if the case

1 For discussion of three judge court requirements, see: Hutcheson, A Case 
For Three Judges (1934), 47 Harv. L. Rev. 795; Berueffy, The Three Judge 
Federal Court (1942), 15 Rocky Mt. L. Rev. 64; Bowen, When Are Three 
Judges Required (1931), 16 Minn. L. Rev. 1; and Notes in 28 111. L. Rev. 839 
(1934); 32 Mich. L. Rev. 853 (1934); 38 Tale Ii. J . 955 (1929).



15

is not appropriate for decision by a three judge court, ap­
peal to this Court does not lie. Oklahoma Gas & Electric. Co. 
v. Oklahoma Packing Co., supra; Jameson & Co. v. Morgen- 
thau, 307 U. S. 171; Public Service Commission of Missouri 
v. Brashear Freight Lines, Inc., 312 IT. S. 784; Gully v. 
Interstate Natural Gas Co., 292 U. S. 16; International 
Garment Workers Union v. Donnelly Garment Co., supra. 
Pendergast v. United States, 314 U. S. 574; American In­
surance Co. v. Lucas, 314 IT. S. 575. Yet notwithstanding 
lack of jurisdiction on appeal, this Court has issued orders 
for the purpose of carrying out the objectives of Section 
2281 by virtue of authority to determine whether the lower 
court acted within its jurisdiction under that statute. See 
Gully v. Interstate Natural Gas Co., supra.

Had the court below expressly granted or denied the 
preliminary and permanent injunctions for which appel­
lants prayed, appellants would clearly have been entitled 
to review by direct appeal, McLaurin v. Board of Regents, 
supra; Board of Supervisors v. Wilson, supra; or if the 
court had dismissed the complaint, direct appeal would 
have been the appropriate remedy, Grubb v. Public Utilities 
Commission, 281 U. S. 470; Sprunt •& Son v. United States, 
281 U. S. 249; and see Bowen, When Are Three Judges 
Required (1931), 16 Minn. L. Rev. 1. Here, however, the 
court below merely disclaimed jurisdiction and remanded 
the cause for proceedings before a single district judge. 
Unless this order constitutes a denial of injunctive relief 
and/or a dismissal of the complaint, it would not appear 
that direct appeal will lie.

In order to determine whether this order is appealable, 
it is essential to examine its effect in respect to appellants’ 
cause of action. Appellants have met all the requirements 
essential to jurisdiction of a three judge court and for pur­
poses of this suit a hearing and determination by a three 
judge court is mandatory. Under such circumstances a 
single judge cannot assume or be awarded jurisdiction,



16

Stratton v. St. Louis S. W. Ry. Co., supra; Ex parte Col­
lins, 277 U. S. 565; Ex parte Williams, 277 U. S. 267. See 
also Riis & Co. v. Iloch, 99 F. 2d 553 (10th Cir. 1938); Smith 
v. Dudley, 89 F. 2d 453 (8th Cir. 1937). Even if appellants 
had not sought an injunction on g’rounds of unconstitution­
ality, in which case a three judge court would not have been 
necessary, International Garment Workers Union v. Don­
nelly Garment Co., supra; appellees seek to defend their 
conduct on grounds that it was mandatory under Tennessee 
law and that they would be acting illegally in admitting 
appellants. Thus, the issue of the conflict between the 
Tennessee law and the Board’s order with the federal 
constitution would have to be decided, and the convening 
of a three judge court would have been rendered necessary 
without regard to appellants’ complaint. At any rate, hav­
ing properly elected to proceed under Section 2281, this is 
not a situation where it may be appropriate for a court to 
require appellants to seek a different mode of redress.2

By dissolving the only court which has jurisdiction to 
grant appellants the relief sought, the court below has 
effectively denied appellants injunctive relief. Such relief 
cannot be granted by a single judge. Had Judge T a ylor  
attempted to issue an injunction restraining appellees from 
enforcing the state’s policy, it could only have been issued 
on the grounds that this policy violated the constitution. 
If Judge T a y l o r  had granted injunctive relief under those

2 Usually this occurs when the issues involved concern constitutionality 
under the state constitution, and state courts have not spoken. Normally 
federal jurisdiction is withheld pending determination by the state courts of 
the state question. See Railroad Commission of Texas v. Pullman, 312 IT. S. 
496; Thompson v. Magnolia Petroleum Co., 309 TJ. S. 478; Chicago v. Field- 
crest Dairies Inc., supra; Spector Motor Service v. McLaughlin, supra; 
American Federation of Labor v. Watson, supra. See also: Pogue, State
Determination of State Law and the Judicial Code (1928), 41 Harv. L. Rev. 
623; Frankfurter Distribution of Judicial Power Between United States and 
State Courts (1928), 13 Corn. L. Q. 499; Lockwood, Maw and Rosenberry, 
The Use of the Federal Injunction in Constitutional Litigation (1930), 43 
How. L. Rev. 426. But here the sole and only question is whether the state 
policy conflicts with federal constitution and hence the doctrine of the Pullman 
ease has no application.



17

circumstances, he would have exceeded his jurisdiction. 
Ex parte Metropolitan Water Co., 220 U. S. 539 ; Ex parte 
Williams, supra; Stratton v. St. Louis S. W. By., supra; Ex 
parte Northern Pacific By., 280 U. 8. 142; Ayrshire Collier­
ies Corp. v. United States, 331 U. S. 132. Actually, there­
fore, the court below has denied appellants injunctive relief 
and their order should be as subject to appeal as a decree 
expressly denying the injunctive relief sought. See Gen­
eral Electric Co. v. Marvel Bare Metals Co., 287 U. S. 430.

Although Judge T a y l o r  has declared appellants are 
entitled to admission to the University of Tennessee, and 
this decision was handed down last August, the state has 
made no move to accept appellants as students at the Uni­
versity. I t is clear that only by a restraining order 
against enforcement of the state policy barring their admis­
sion because of race, on grounds that this is in conflict with 
the federal constitution, will appellants be admitted to the 
University of Tennessee. The substantive law on this sub­
ject is clear and conclusive, and appellants should not be 
further delayed in their educational pursuits through pro­
cedural delays. This case should be reviewed on the merits 
and, we submit, this Court has jurisdiction on appeal.

Conclusion

Direct appeal to this Court from decisions of three 
judge district courts provides a speedy method for review 
of important constitutional questions. Under the decisions 
of this Court, there can be no doubt that appellants are 
entitled to be admitted to the University of Tennessee. 
The injury to them, in terms of loss of time and of potem 
tial development, caused by appellees’ illegal conduct is 
irremedial. Further procedural delays in vindicating their 
rights will merely compound the injury. Review of this 
case on the merits by this Court on direct appeal will serve



1 8

to hasten the final determination of appellants’ rights to 
attend the University of Tennessee.

For these reasons, we submit, a direct appeal to this 
Court should be allowed, and the cause reversed and 
remanded with instructions to the court below to enjoin 
appellees from enforcing their order, the constitution and 
statutes of the state pursuant to which appellants have 
been denied admission to the University of Tennessee.

Respectfully submitted,

R obert L. Carter,
Carl A. Cowart,
T hubgood Marshall,

Counsel for Appellants,
Z. A lexander L oobt,
Avon N. W illiams, J r.,

Of Counsel.



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