Tureaud v. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College Petition for Writ of Certiorari

    IN  T H E

O cto b er T erm , 1953

No.

ALEXANDER P. TUREAUD, JR., a Minor, by Alexander 
P. Tureaud, Sr., his father and next friend,

Petitioner,
vs.

BOARD OP SUPERVISORS OP LOUISIANA STATE 
UNIVERSITY AND AGRICULTURAL AND ME­
CHANICAL COLLEGE, et at.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR 

THE FIFTH CIRCUIT

R obert L. Carter, 
T htjrgood Marshall, 
Ulysses S. Tate, 
Alexander P. T ureaud, 

Counsel for Petitioner.

S upreme P rinting Co,, I nc., 114 W orth Street, N. Y. 13, B E ekman  3 - 2320
“  -49



TABLE OF CONTENTS

PAGE

Opinions Below ..............................................................  1
Jurisdiction .....................................................................  2
Question Presented ........................................................  2
Constitutional Provision Involved................................ 2
Statement of the Case ..................................................  2

The Complaint and Hearing on the Motion for 
Preliminary Injunction .....................................  2

The Evidence as to Equality of Facilities.............  5
Proceedings at the Appellate Level ..................... 11

Specifications of Errors to Be U rged ............................  12
Reasons for the Allowance of the W r i t ........................  13
Conclusion .......................................................................  21

Table of Cases

American Federation of Labor v. Watson, 327 U. S.
582 ............................................................................. 13

California Water Service Co. v. Redding, 304 U. S.
252 ............................................................................... 13,16

Carter v. School Board of Arlington County, 182 F.
2d 531 (C. A. 4th 1950) ...........................................  19

Cleveland v. United States, 323 U. S. 329 ................. 19, 21
Corbin v. School Board of Pulaski County, 177 F. 2d 

924 (C. A. 4th 1949) ................................................. 19
Edelman v. Boeing Air Transport, 289 U. S. 249 . . . .  18
Ex Parte Bransford, 310 U. S. 354 ........................  18,19
Ex Parte Hobbs, 280 U. S. 1 6 8 .................................  18,19
Ex Parte Williams, 277 U. S. 267 ..............................  13



11

PAGE
Foister v. Board of Supervisors, Civil Action No.

937 (E. D. La. 1952) ........................................... 17,20,21
Gray v. Board of Trustees, 97 F. Supp. 463 (Tenn.

1951)...........................................................................  20
Gully V. Interstate National Gas Co., 292 U. S. 16 .. 16
Jameson & Co. v. Moregnthau, 307 U. S. 17 1 ........ 16

18
17

McCart v. Indianapolis Water Co., 302 U. E. 419 . . .  
Missouri ex rel Gaines v. Canada, 305 U. S. 337 . . .
Oklahoma Gas & Electric Co. v. Oklahoma Packing

Co., 292 U. S. 386 ......................................................  13
Oklahoma Natural Gas Co. v. Russell, 261 U. S. 290 13
Payne v. Board of Supervisors, Civil Action No. 894

(E. D. La. 1952) ...................................................17,20,21
Phillips V. United States, 312 U. S. 246 ............. 13,16,18,19
Plessy V. Ferguson, 163 U. S. 573 ............................  17

Rorick v. The Everglades Drainage Dist., 307 U. S.
208 ....................................... 18

17
20

Sipuel V. Board of Regents, 332 U. S. 631 .................
Spielman Motor Sales Co. v. Dodge, 295 U. S. 8 9 ___
Watch Tower Bible & Tract Soiety v. Bristol, 24 F.

Supp. 57 (Conn. 1938), aff’d 305 U. S. 572 .............
Wichita Falls Junior College v. Battle, 204 F. 2d 

632 ............................................................................
Wilson V. Board of Supervisors, 92 F. Supp. 986 

(E. D. La. 1950) ...........................................14,16,17,20

20

20



IN THE

QInurt at t̂al̂ s
O cto b er T erm , 1953 

No.

Alexandbe P. Tubeaud, J r ., a Minor, by Alexander P. 
Tureaud, Sr., his father and next friend.

Petitioner,
vs.

B oard of Supervisors of Louisiana State University and 
A gricultural and Mechanical College, et al.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR 

THE FIFTH CIRCUIT

To the Honorable, the Chief Justice of the United 
States and the Associates Justices of the 
Supreme Court of the United States:

Petitioner prays that a writ of certiorari issue to review 
the judgment of the United States Court of Appeals for the 
Fifth Circuit entered in the above-entitled cause on Octo­
ber 28, 1953.

Opinions Below

The opinion, findings of fact and conclusions of law of 
the District Court (R. 21-30) is reported in 116 F. Supp. 
248. The opinion of the Court of Appeals (R. 35-45) is 
reported in 207 F. 2d 807.



Jurisdiction

The judgment of the Court of Appeals was entered on 
October 28, 1953 (R. 45). Jurisdiction of this Court is 
invoked pursuant to Title 28, United States Code, Section 
1251(1). On November 16, 1953 this Court stayed the 
judgment of the Court of Appeals, pending the filing and 
final disposition of this petition for writ of certiorari. An 
order extending the time for filing this petition from 
January 26, 1954 to February 16, 1954 was granted on 
January 26, 1954 (R. 47).

Question Presented

Whether this is a cause which must be heard and deter­
mined by a district court of three judges pursuant to 
Title 28, United States Code, Section 2281 et seq.

Constitutional Provision Involved

Article XII, Section I of the Constitution of Louisiana 
provides as follows:

The educational system of the state shall consist of all 
free public schools, and all institutions of learning sup­
ported in whole or in part by appropriations of public 
funds. Separate free public schools shall be maintained 
for the education of white and colored children between the 
ages of six and eighteen years.

Statement of the Case

T he C om plain t a n d  H earin g  on th e  M otion fo r  
P re lim in ary  In junc tion

Petitioner is a minor of 17 years of age. He is a citizen 
of the United States and a citizen and resident of the State 
of Louisiana (R. 2). On or about June 5, 1953, petitioner,



being duly qualified, made application for admission at the 
next regular school term beginning September, 1953, to the 
first-year class (Junior Division) of Louisiana State Uni­
versity and Agricultural and Mechanical College (E. 5), 
an institution of higher learning maintained and supported 
by the State of Louisiana. Petitioner desired to pursue a 
combined course in arts and science and law offered under 
the curriculum of the College of Arts and Sciences and the 
School of Law. Those successfully'  ̂ completing this course 
receive both an A.B. or B.S. degree and an LL.B. degree 
in six rather than seven years (E. 4-5). On or about August 
8, 1953, petitioner was advised by respondent, John A. 
Hunter, registrar of the University, of the rejection of his 
application (E. 6) pursuant to the University’s policy of 
“ not admitting Negro students to that area.’’ (Pre-trial 
depositions, p. 52.) Whereupon, petitioner, by his father 
and next friend, instituted the present litigation.

In his complaint, petitioner made application for a tem­
porary and permanent injunction to restrain respondents 
from refusing solely on the basis of race and color to admit 
him and other Negroes similarly situated to Louisiana 
State University to pursue the combination course in arts 
and science and law (E. 2, 8, 11). Jurisdiction was invoked 
under Title 28, United States Code, Section 2281 (E. 2). 
Petitioner sought a hearing and determination by a district 
court of three judges of his application to enjoin respond­
ents from refusing to admit him to Louisiana State Uni­
versity in the enforcement and execution of a state statute 
and order of the respondent Board of Supervisors barring 
the admission of Negroes to the University. It was alleged 
that the statute and order were in conflict with the federal 
Constitution.

The District Judge, however, taking the view that a 
three-judge court was not required, ordered the case set 
down for hearing before him sitting alone. Petitioner 
abandoned his claim to a hearing before a specially con­



stituted federal court as required under Title 28, United 
States Code, Section 2281 and proceeded without protest 
to a hearing on the motion for preliminary injunction. 
No proof tending to establish a claim of the unconstitution­
ality of segregation per se was submitted. Rather the 
evidence dealt solely with whether the educational oppor­
tunities, offerings and facilities at Southern University, 
the state-supported institution of higher learning for 
Negroes, were equal or substantially equal to those avail­
able at Louisiana State University with respect to the 
combination course desired (see depositions, findings of 
fact and appendix thereto of the District Court). Respond­
ents filed a motion to dismiss and a return and answer 
(R. 13). After hearing on the motion for preliminary 
injunction and consideration of the evidence presented, 
including pre-trial depositions and catalogTies of Louisiana 
State University (introduced as Plaintiff’s Exhibit #1 ) 
and of Southern University (introduced as Plaintiff’s 
Exhibit # 3 ), the court, on September 11, 1953, denied 
respondent’s motion to dismiss, and found that petitioner 
was denied his constitutional right to receive equal educa­
tional opportunities by being refused admission to Louisiana 
State University. The court, thereupon, issued the tempo­
rary injunction applied for, restraining respondents from 
refusing to admit petitioner to the Junior Division of 
Louisiana State University to pursue the combination 
course in arts and science and law for which he had applied 
(R. 32).

The evidence adduced at the pre-trial depositions, and 
from the catalogues of Louisiana State University and 
Southern University which is set out in substance in the 
appendix to the District Court’s findings of fact (R. 27 
et seq.), amply supports the court’s findings of fact that 
petitioner could not receive at Southern LTniversity educa­
tional opportunities equal to those available at Louisiana 
State University.



T h e E vidence  as to  E q u a lity  o f F ac ilities

1.

L ouisiana State Univebsity

Eespoiidents offer a combination arts and science and 
law course at Louisiana State University whereby a student 
may complete the requirements for and receive an A.B. or 
B.S. and an LL.B. degree in six years rather than in seven 
years (Catalogue of Louisiana State University 1953-1955 
[hereafter referred to as PL Ex. #1 ], pp. 77 and 151); a 
combination course in commerce and law (PL Ex. #1, pp. 
113 and 151), and in geology and law (PL Ex. :̂ 1̂, pp. 100 
and 151).

SouTHEEN University

Southern University offers a combination course in 
political science and law, English and law and mathematics 
and law (Catalogue of Southern University [hereafter 
referred to as PL Ex. # 3 ], pp. 208-210). Very few students 
have undertaken this course and no degree under this 
program has been awarded at Southern (depositions, p. 
88). At present only one applicant has applied for the 
combination curriculum (depositions, p. 89).

2.

L ouisiana State U niversity

Louisiana State University operates on an annual budget 
of $12,000,000 (depositions, p. 12). It has 6400 students 
(depositions, p. 54) with a per capita operating cost of 
$1875.00 per student. I t is composed of 17 major adminis­
trative divisions, including a Junior Division, a Junior 
College, a Junior Term, a General Extension Division, a 
University College (for those unable to attend regular day 
sessions, PL Ex. #1 , pp. 160-161) and 12 other colleges with 
various divisions, departments and schools within these 
colleges (PL Ex. #1 , p. 37), and offers bachelors degrees at 
the college level, masters and doctoral degrees at the gradu­



ate school level, and various degrees at the profes'sional 
school level (P. Ex. #1 , p. 37). It is a member of the 
Southern Association of Colleges and Secondary Schools 
(depositions, p. 9).

Southern U niversity

Southern University operates on an annual budget of 
$2,000,000 (depositions, p. 59). There are approximately 
2900 students enrolled in the college proper (depositions, 
p. 73) with a per capita cost of $689.65 per student. With 
the exception of the law school, the entire instruction offered 
is at the college level (depositions, p. 59). I t  is in fact a 
general college (depositions, p. 59). The institution is 
approved by the Southern Association of Colleges and 
Secondary Schools, but unlike Louisiana State University 
is not a member of that accrediting agency (depositions, 
p. 59). There are 150 regular faculty members outside the 
law school in the entire University (depositions, p. 60), 
including 91 instructors, 30 assistant professors, 16 asso­
ciate professors and 16 full professors (depositions, p. 71).

3.
Louisiana State U niversity

At the college level is the Junior Division (where all 
first year college work is concentrated), the College of 
Agriculture, the College of Chemistry and Physics, the 
College of Commerce, the College of Education, the College 
of Engineering, the College of Arts and Sciences and a 
School of Music (PI. Ex. # 1 ).

Southern U niversity

The college offers a program of freshman studies (PI. 
Ex. #3, pxi. 69-73 inch). It contains a Division of Agricul­
ture (PI. Ex. #3, p. 74) as compared with a College of! 
Agriculture at Louisiana State University; a Division of 
Business (PI. Ex. #3 , p. 86) as compared with a College



of Commerce at Louisiana State IJniversity; a Division of 
Education (PI. Ex. #3 , p. 100) as compared with a College 
of Education at Louisiana State University; a Division of 
Health and Physical Education (PI. Ex. #3 , p. 131); a 
Division of Home Economics (PI. Ex. #3, p. 138); a Divi­
sion of Industrial and Technical Education (PI. Ex. #3, 
p. 146); a Division of Military Science and Tactics (PI. Ex. 
#3, p. 196); a Division of Music (PI. Ex. #3, p. 201) as 
compared with the School of Music at Louisiana State 
University and a Division of Liberal Arts and Sciences 
(PI. Ex. #3 , p. 162) as compared with a College of Arts 
and Sciences at Louisiana State University.

4.
L ouisiana State U niversity

The College of Arts and Sciences is headed by Dean 
Cecil G. Taylor, who holds a Ph. D. degree (depositions, 
p. 15, and PL Ex. #1, p. 93). It contains 18 departments 
in the following fields: Air Science; Books and Libraries; 
Botany; Bacteriology and Plant Pathology; English; Fine 
Arts; Foreign Languages (Classical, Germanic and Slavic 
and Romance); Geography and Anthropology; Geology; 
Government; History; Journalism; Mathematics; Military 
Science; Philosophy; Psychology; Sociology; Speech; and 
Zoology, Physiology and Entomology (PI. Ex. #1, p. 93). 
The college is staffed by 160 regular faculty members plus 
an additional instructional force below the faculty rank 
(depositions, p. 34). Of the regular faculty staff of 160, 
approximately 25% are assistant professors, 25% are asso­
ciate professors, and 25% are of full professional rank 
(depositions, p. 35). Between 600 and 700 students are 
enrolled (depositions, p. 16). The goal of the college is to 
secure as instructors those who hold Ph. D. degrees in their 
respective fields (deiiositions, i). 35). Tlie Dean’s salary 
is $9700 (depositions, p. 40).



SO U TH EB IT  U n IVEBSITY

The Division of Liberal Arts and Sciences is composed 
of nine departments including the departments of Fine and 
Applied Arts; Biology; Chemistry; Physics (as compared 
to the College of Chemistry and Physics at Louisiana State 
University), English; Mathematics; Modern Poreigai Lan­
guages; Psychology; and Social Sciences. There are some 
66 regular faculty members including a part-time instructor 
(PI. Ex. #3 , pp. 164, 167, 170, 177, 172, 176, 179, 181, 182). 
It should be noted that there is no department of Air 
Science; Books and Libraries; Botany; Bacteriology and 
Plant Pathology; Geography and Anthropology; Geology; 
Government; History; Journalism; Philosophy; Sociology; 
Speech; or Zoology. I t should also be noted that Greek, 
Germanic and Slavic Languages, Italian and Portuguese 
are not taught.

Dean J. D. Cade who holds an M.A. degree (PI. Ex. #3, 
p. 8) is dean of the College and Director of the Division of 
Liberal Arts and Sciences (PI. Ex. #3 , p. 163). He receives 
a salary of $7200 (depositions, p. 97). The requirement at 
Southern for an instructorship is a Master’s degree (PI. Ex. 
#3, p. 72).

5.
Louisiana St.'Vte U nivebsity

In the College of Arts and Sciences, the catalogue indi­
cates that the Department of Books and Libraries has two 
instructors and offers two courses (PI. Ex. # 1, p. 181); 
the Department of Botany, Bacteriology and Plant Pathol­
ogy has eleven faculty members and offers 37 courses (PL 

# l j  PP- 181-182); the Department of Ancient and 
Modern Foreign Languages has two professors in Classical 
Languages and offers 17 courses (PL Ex. #1, p. 174), 
3 teachers of German, Slavic and Eussian languages and 
offers 17 courses (PL Ex. #1, pp. 174-175), and 12 teachers 
of Eomance languages, offering 23 courses in French, 2 in



9

Italian, 2 in Portuguese, 20 in Spanish and 2 in Romance 
Philology and Bibliography (PL Ex. #1, pp. 175-178); the 
Department of English has 33 teachers and offers 64 courses 
(PI. Ex. #1 , pp. 201-203); the Department of Fine Arts has 
12 teachers and otters 42 courses (PI. Ex. #1 , p. 203); the 
Department of Government has 5 professors and offers 32 
courses (PI. Ex. #1, p. 212); the Department of History 
has 10 teachers and offers 38 courses (PI. Ex. #1, pp. 218- 
219); the Department of Journalism has 6 teachers and 
offers 19 courses (PI. Ex. #1 , pp. 223-224); the Department 
of Mathematics has 25 teachers and offers 38 courses (PI. 
Ex. #1, pp. 225-226); the Department of Philosophy has 
3 teachers and offers 22 courses (PI. Ex. #1 , pp. 234-235); 
the Department of Psychology has 9 teachers and offers 44 
courses (PL Ex. #1, pp. 238-239); the Department of 
Sociology has 11 professors and offers 41 courses (PL Ex. 
#1 , pp. 243-245); and the Department of Zoology, Physi­
ology and Etomology has 11 teachers and offers 45 courses 
(PL Ex. #1 , pp. 252-255).

S O U T H E E N  U n IVEESITY

Within the Division of Liberal Arts and Sciences at 
Southern, the catalogue indicates that the Department of 
Fine and Applied Arts has 3 faculty members and offers 
18 courses (PL Ex. #3, pp. 164-166); the Department of 
Biology has 12 faculty members, with one on leave, and 
offers 31 courses (PL Ex. #3 , pp. 167-170); the Department 
of Chemistry has 4 faculty members and offers 11 courses 
(PL Ex. #3, pp. 170-172); the Department of English has 
17 faculty members, one of whom is designated as part 
time, and offers 27 courses, including 6 courses in English 
Composition and Journalism and 11 courses in Speech (PL 
Ex. #3, pp. 173-176); the Department of ilathematics has 
7 faculty members and offers 11 courses (PL Ex. #3, pp. 
176-177); the Department of Physics has 3 faculty members 
and offers 5 courses (PL Ex. #3, pp. 177-178); the Depart-



10

ment of Modern Foreig-n Languages has 4 teachers, with 
one on leave, and offers 10 courses in Spanish, 4 in German 
and 9 in French (PL Ex. #3 , pp. 179-181); the Department 
of Psychology has one teacher and offers 10 courses (PL 
Ex. #3, pp. 181-182); the Department of Social Sciences 
has 15 faculty members, with one on leave, and offers 96 
courses—15 courses in Economics, 12 in Geography, 30 in 
History, 22 in Political Science, 15 in Sociology and 2 in 
Anthropology (PL Ex. #3, pp. 182-193).

6.

Louisiana State U niversity

Louisiana State University offers a combined course in 
arts and sciences and law, geology and law, and commerce 
and law as indicated. After completion of the Junior 
Division, a student must complete prescribed minimum re­
quirements for the arts and science degree (PL Ex. #1, 
p. 96) and he may receive the remainder of the necessary 
credits for his degree by choosing from a variety of elec­
tives, within certain limitations as set out in Plaintiff’s Ex­
hibit #1 , page 96 and depositions, pages 30-33. After com­
pletion of the Junior Division a student who at first matricu­
lated for the arts and sciences and law course may switch 
to geology and law without loss of time or credits (deposi­
tions, p. 33). There is no question but that this combination 
curriculum is a working program and going concern.

Southern U niversity

Southern University offers a combination curriculum in 
3 fields as previously indicated. The program is fixed as 
set forth in the school catalogue (PL Ex. #3 , pp. 208-210). 
No deviation from the course of study there prescribed is 
permissible under Southern’s program (depositions, pp. 
97-98).



11

E vident Conclusions

a. With respect to the combined arts and sciences and 
law curriculum at Louisiana State University as contrasted 
with the combination curriculum at Southern, the student 
pursuing the course at Louisiana State University has far 
greater advantages and opportunities than a student at 
Southern.

b. The combination curriculum at Louisiana State Uni­
versity is a well-organized, well-functioning program. At 
Southern, on the other hand, while the course exists on 
paper, as yet no degree has been awarded under this pro­
gram and only one student has indicated interest at the 
present school term.

c. The Louisiana State University student in the Col­
lege of Arts and Sciences has 160 regular faculty members 
available of which 75% are of professional rank. The 
students at Southern have only 66 faculty members avail­
able in the Division of Liberal Arts, and if the Division in 
rank follows that in the entire college, approximately 40% 
of these are of professional status.

d. The variety of courses offered is greater than at 
Southern and the student has opportunity to obtain a richer 
and more diversified background in Liberal Arts than is 
possible under Southern’s program.

P ro ceed in g s a t  th e  A p p e lla te  Level

Respondents appealed to the United States Court of 
Appeals. That Court on October 28, 1953, with one .iudge 
dissenting, reversed the judgment of the District Court on 
the ground that the District Judge was without jurisdiction 
since this was a case which should have been heard and 
determined by a district court of three judges (R. 45).



12

Petitioner applied to this Court for a stay of the judgment 
of the Court of Appeals, which application was granted on 
November 16, 1953. On January 26, 1954, an order was 
issued extending the time for the filing of this petition until 
February 16, 1954 (R. 47).

Specifications of Errors to Be Urged

T h e C ourt o f A p p e a ls  E rre d :

1. In holding that the case should have properly pro­
ceeded pursuant to the requirements of Title 28, United 
States Code, Section 2281 et seq. and that, therefore, the 
judgment of the District Court was a nullity.

2. In holding that petitioner, in proceeding to hearing 
before the District Court, in failing to press his claim in re 
the constitutionality of segregation per se and in merely 
resting his case upon the inequality of educational facilities 
and opportunities, had not waived and abandoned his right 
to a hearing before a district court of three judges.

3. In holding in effect that a district judge may not 
view the case in its totality and properly refuse to convene 
a three-judge court rather than be bound by the mere 
formal averments of the complaint.

4. In holding that this case was required to be heard by 
a district court of three judges despite the fact that the 
basic issue—the right of Negroes to attend Louisiana State 
University where other equal educational opportunities 
were not available—was not one of first impression in 
the court below.



13

Reasons for the Allowance of the Writ

I. Settlement of the question presented here is clearly 
necessary because it involves an important question of 
federal procedure and practice. In construing Title 28, 
United States Code, Section 2281 et seq., this Court has 
evolved rules and regulations designed to protect the ad­
ministration of state laws against hasty and improvident 
invalidation by federal courts and at the same time protect 
the public need for efficient administration of the federal 
judicial system. Since the problem here raised is likely to 
arise in a large variety of cases where injunctive relief 
against denial of civil rights is being sought, it should be 
determined by this Court.

II. The decision of the Court of Appeals is in conflict 
with the basic principles enunciated by this Court defining 
the reach and application of Title 28, United States Code, 
Sections 2281 and 2284.

A. Title 28, United States Code, Sections 2281 and 2284, 
may be properly invoked only when injunctive relief is 
sought against state legislative policy as defined in state 
constitutions or statutes or in the orders of state adminis­
trative agencies on the ground that the state’s policy as thus 
defined is unconstitutional under the Constitution of the 
United States. Phillips v. United States, 312 U. S. 246; 
Oklahoma Natural Gas Co. v. Russell, 261 U. S. 290; Okla­
homa Gas & Electric Co. v. Oklahoma Packing Co., 292 U. S. 
386; American Federation of Labor v. Watson, 327 U. S. 
582; Ex Parte Williams, T il U. S. 267; California Water 
Service Co. v. Redding, 304 U. S. 252.

1. No constitutional or statutory provision of the State 
of Louisiana forbids the admission of petitioner or of 
Negroes similarly situated to Louisiana State University 
and Agricultural and Mechanical College on the grounds of



u

race and color. Petitioner cites Article XII, § 1 of the 
Constitution which provides as follows:

The educational .system of the state shall consist 
of all free public schools, and all institutions of learn­
ing supported in whole or in part by appropriations 
of public funds. Separate free public schools shall be 
maintained for the education of white and colored 
children between the ages of six and eighteen years.

It should be noted here that racial segregation is made 
mandatory only with respect to free public schools. Obvi­
ously, this provision does not include Louisiana State Uni­
versity. No reference is made in the above-mentioned con­
stitutional provision, or indeed in any state statute which 
petitioner’s counsel has been able to find, concerning the 
racial composition of the student body at Louisiana State 
University and Agricultural and Mechanical College. The 
Court’s attention is also directed to Wilson v. Board of 
Supervisors, 92 F. Supp. 986, 988 (E. D. La. 1950), appeal 
dismissed 340 U. S. 909, in which counsel for both the Negro 
applicant and the University conceded and the Court found 
that there were no state statutes or constitutional provi­
sions which by their terms specifically forbade the admis­
sion of Negroes to Louisiana State University and Agri­
cultural and Mechanical College. Therefore, it does not 
appear that the claim of an unconstitutional legislative 
policy forbidding petitioner’s admission to Louisiana State 
University because of race as defined in the statutes or 
constitutional provisions of the State of Louisiana appear­
ing in petitioner’s amended complaint (R. 2, 5) can be 
sustained.

2. There is no state legislative i)olicy in the form of 
delegated legislation by an administrative body or agency 
which prohibits petitioner or other Negroes similarlv situ­
ated from being admitted to Ijouisiana State University



15

because of their race and color. Eeference is made in para­
graph 8 of the amended complaint to an order of the Board 
of Supervisors of Louisiana State University excluding 
Negroes from all colleges and undergraduate departments 
(R. 5). No proof of the existence of any such order, how­
ever, was established by either petitioner or respondents in 
any of the proceedings in this case. Petitioner’s rejection 
is based by respondents upon an established University 
policy, custom and usage (pre-trial depositions, pp. 8, 52). 
The closest evidence relative to the existence of such an 
order occurs in the following exchange between counsel for 
petitioner and the President of the University (depositions, 
pp. 8, 9):

“ Q. Are you familiar with the application of the plain­
tiff in this action, Mr. Tureaud’s application?

A. Yes, sir.
Q. Will you tell me, advise me, why, what reason he 

was refused admission?
A. Because it has been a tradition and a policy of the 

university of long standing that we do not admit 
Negro students.

Q. Has this policy been the policy set by the Board 
of Supervisors?

A. I  presume it was set many years ago, I wouldn’t 
know, but it has been a policy so long as I have 
been there. I have been there about 23 years.

Q. How were you advised of the policy. General 
Middleton 1

A. Well, at first it was through custom.
Q. At first it was through custom, and now what is 

it on?
A. I think it was 1951 the question of entrance of 

Negro students was discussed at a Board meeting. 
The Board advised me that when a Negro student 
applied for admission, to refuse the admission and 
report my actions to the Board.



16

Q. I see. So that in refusing the admission of the 
plaintitf in this action, you were acting pursuant 
to the order of the Board of Supervisors?

A. That’s right.”

There is no evidence that any formal order barring peti­
tioner or other Negroes was ever issued by the Board of 
Supervisors. Indeed, the President was pursuing a policy 
which had been in existence longer than the 23 years he 
had been connected with the University. Unlike Wilson v. 
Board of Supervisors, supra, where the Board of Super­
visors promulgated and published a specific order barring 
Wilson’s admission, no such action was taken here. The 
advice of the Board to the President of the University would 
not appear to be delegated state legislation of an admin­
istrative hoard or agency sufficient to satisfy the jurisdic­
tional requirements of Title 28, United States Code, Section 
2281 as defined by this Court in Phillips v. United States, 
312 U. S. 246, 251.
N B. Even where there is in existence state statutes or 
orders of administrative agencies whose constitutionality 
is under attack, the jurisdictional requisites sufficient to 
properly invoke Title 28, United States Code, Section 2281 
are not met unless the claim of unconstitutionality is sub­
stantial. Ex Parte Bruder, 271 U. S. 461; Jameson & Co. v. 
Morgenthau, 307 U. S. 171; Gully Interstate National Gas 
Co., 292 U. S. 16; California Water Service Co. v. Redding, 
supra.

Although the averments of unconstitutionality are made 
in the amended complaint, proof was directed solely to the 
establishment of the fact that petitioner’s rejection was 
illegal because he was not able to obtain equal educational 
opportunities. The invalidity of the enforcement of segre­
gation laws under such circumstances is too firmly settled.



17

see Plessy v. Ferguson, 163 U. S. 573; Missouri ex rel. Gaines 
V.  Canada, 305 U. S. 337; Sipuel v. Board of Regents, 332 
U. S. 631, to warrant the needless expense and drain upon 
the federal judiciary which is necessarily involved in the 
convening of a district court of three judges under the man­
date of Title 28, United States Code, Section 2281.

It should be added further that the legal claim litigated 
and resolved by the District Court—the right of petitioner 
to attend Louisiana State University because the educa­
tional opportunities and facilities at Louisiana State Uni­
versity were superior to those available at Southern Uni­
versity, the state-supported institution for Negroes—was 
not a question of first impression. Within the past three 
years this same question has been before the District Court, 
and on each occasion the Negro applicant has been ordered 
admitted to Louisiana State University. See Wilson v. 
Board of Supervisors, supra; Foister v. Board of Super­
visors, Civil Action No. 937 (E. D. La. 1952); Payne v. 
Board of Supervisors, Civil Action No. 894 (E. D. La. 1952). 
And, moreover, the basic issue was heard and determined in 
the first instance by a district court of three judges in Wil­
son V. Board of Supervisors, supra. The basic issue having 
been decided consistently with the decisions of this Court, 
the necessity for relitigation of each successive claim before 
a specially constituted court appears to be not only unneces­
sary but wasteful.

C. Where an applicant has properly made a claim of 
unconstitutionality sufficient to warrant a hearing and de­
termination by a three-judge court, such claim may be aban­
doned and the matter properly litigated before a single 
district judge. Ex Parte Hobbs, 280 U. S. 168; Edelman v. 
Boeing Air Transport, 289 U. S. 249; McCart v. Indianapo­
lis Water Co., 302 U. S. 419. The decision of the Court of 
Appeals (R. 38-39) concedes that such an abandonment may 
be made. Yet the fact that petitioner failed to press his



18

claim as to the iinconstitutionality of segregation ])er se, 
and rested his case solely on the ground that his exclusion 
from Louisiana State University was a denial of his con­
stitutional rights in that there were no other equal facilities 
available within the state, was not considered a sufficient 
abandonment by the Court of Appeals. As such the deci­
sion appears to be in direct conflict with the rationale of 
this Court in Ex Parte Hobbs, supra.

U. Title 28, United States Code, Sections 2281 and 2284, 
were designed to secure the public interest in a limited class 
of cases of special importance and to make certain that state 
legislation would not be invalidated by a conventional suit 
in equity. In view of the fact that the procedural device 
entails a serious drain upon the federal judicial system and 
upon the appellate docket of the United States Supreme 
Court, the statute has been construed as an enactment of 
the greatest technicality which must be strictly and closely 
construed. Phillips v. United States, 312 U. S. 246; Rorick 
V. The Everglades Drainage List., 307 U. S. 208; Ex Parte 
Bransford, 310 U. S. 354.

Under the decision of the Court of Appeals, where the 
formal averments of unconstitutionality are made, even 
though petitioner may decide to proceed before a single 
district judge and rest his suit on a theory of law firmly 
foreclosed by decision of this Court, the district judge 
nevertheless is without jurisdiction to hear the cause but 
must convene a three-judge court. This, we submit, gives 
a far more liberal construction of Section 2281 than is war­
ranted by the application of principles enunciated in deci­
sions of this Court. See Ex Parte Hobbs, supra; Phillips v. 
United States, supra; Ex Parte Bransford, supra.

III. There is confusion and conflict among the Courts of 
Appeal as to the appropriate application of Title 28, United 
States Code, Section 2281 et seq., particularly in the areas



19

of controversy involved in the instant case and this confu­
sion and conflict should be I’esolved by this Court.

Illustrative of this confusion and conflict are thj fol­
lowing :

A. Under the instant decision, a court of three judges 
is required where the necessary formal jurisdictional aver­
ments are made in the complaint in spite of the complain­
an t’s acquiescence in having a hearing before a single dis­
trict judge: (1) even though the suit as pressed merely seeks 
admission of a Negro applicant to the state university on 
the grounds of absence of equal educational opportunities 
and facilities, and (2) in the absence of a state statute or 
order of an administrative board or agency which by its 
terms prohibits petitioner’s admission to the state univer­
sity because of race.

B. The Fourth Circuit in Carter v. School Board of 
Arlington County, 182 F. 2d 531 (CA 4th 1950), and in 
Corhin v. School Board of Pulaski County, 177 F. 2d 924 
(CA 4th 1949), found nothing procedurally amiss in a 
conventional suit in equity seeking injunctive relief against 
state officers denying to Negroes equal educational advan­
tages and opportunities. In both cases a statute of the 
State of Virginia expressly required segregation of Negro 
and white students at the educational levels involved. Thus, 
in both instances the officials were enforcing a policy of 
statewide application and concern. See Cleveland v. United 
States, 323 U. S. 329. While the complaint in both cases did 
not seek to invoke jurisdiction under Section 2281, if the 
present decision is correct, cases of this nature must at all 
times be brought and heard before a three-judge district 
court.

C. In Gray v. Board of Trustees, 97 F. Supp. 463 (Tenn. 
1951), vacated as moot, 342 U. S. 517, a complaint properly 
drawn to satisfy the jurisdictional prerequisites of Section



20

2281 et seq. was held not to present a substantial claim of 
unconstitutionality sufficient to warrant determination by a 
court of three judges. Rather the case was treated as one 
merely presenting a claim of denial of equal facilities, deter­
mination of which was appropriate in an ordinary suit 
in equity.

IV. There is a conflict within the Fifth Circuit itself on 
this question which should be resolved by this Court. The 
district judge and one member of the Court of Appeals in 
this case take the view that this is an appropriate case to be 
determined by a single judge. Two other judges on the 
Court of Appeals have a contrary position. In the same 
district court involved here, after Wilson v. Board of Super­
visors, supra, had been decided, Foister v. Board of Super­
visors, and Payne v. Board of Supervisors, supra, were 
decided without the convening of a specially constituted 
district court of three judges. In both cases jurisdiction 
was invoked under Title 28, United States Code, Section 
2281 and injunctive relief was sought to enjoin the officials 
of Louisiana State University, respondents here, from re­
fusing to admit Negroes to Louisiana State University.

Further, Wichita Falls Junior College v. Battle, 204 F. 
2d 632 (pending here on petition for writ of certiorari), 
where the complaint sought injunctive relief against the 
refusal of the state officials to admit Negroes to the Wichita 
Falls Junior College, was held not to be a case requiring 
a hearing before a court of three judges. The Wichita 
Falls Junior College case cannot be put to one side on 
the theory that only local officers were involved. Segrega­
tion of the races in the educational institutions of Texas is 
a statewide policy, and it was this policy which was being 
enforced. As such, without regard to the geographical 
limitations set to their authority, the school officials were 
state officers within the meaning of Title 28, United States 
Code, Section 2281. Spielman Motor Sales Co. v. Dodge, 
295 U. S. 89; Watch 1 ower Bible & Tract Society v. Bristol,



21

24 F. Supp. 57 (Conn. 1938), aff’d 305 U. S. 572; Clevelcmd
V. United States, 323 U. S. 329. Henco that decision as well 
as the aforementioned Foister and Payne decisions are 
inconsistent with the holding in this case.

Conclusion

W heeefoeb, fo r the reasons hereinabove stated, this 
petition fo r w rit of certio rari should be granted.

Respectfully submitted,

Robert L. Cabtee, 
T huegood Marshall, 
Ulysses S. Tate, 
A lexander P. T ubbaud, 

Counsel for Petitioner.



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