Sipuel v Board of Regents of UOK Brief for Petitioner

    IN  THE

Supreme dmtrt of thr TUmUb Btntts
October Term, 1947

No. 369

ADA LOIS SIPUEL,

v.
Petitioner,

BOARD OF REGENTS OF THE UNIVERSITY OF 
OKLAHOMA, GEORGE L. CROSS, MAURICE 
H. MERRILL, GEORGE WADSACK and ROY 
GITTINGER,

Respondents.

ON WHIT OF CERTIORARI TO THE SUPREME COURT 
OF THE STATE OF OKLAHOMA

BRIEF FOR PETITIONER

T hurgood Marshall,
A mos T. H all,

Counsel for Petitioner.
R obert L. Carter,
E dward R. D udley,
M arian W yn n  Perry,
F rank D. R eeves,
F ranklin H. W illiams,

Of Counsel.



TABLE OF CONTENTS

PAGE

Opinion of Court Below_____________________________  1
Jurisdiction_________________________________________  1
Summary Statement of the Matter Involved_________  2

1. Statement of the C ase________________________  2
2. Statement of F acts___________________________  4

Assignment of Errors ______________________________  7
Question Presented__________________________________ 7
Outline of Argument _______________       8
Summary of Argument _____________________________  9
Ai-gument _______________________________________   10

I— The Supreme Court of Oklahoma Erred in Not 
Ordering the Lower Court to Issue a Writ Requir­
ing the Respondents to Admit Petitioner to the 
Only Existing Law School Maintained by the 
State __________________________________________  10

II— This Court Should Re-Examine the Constitution­
ality of the Doctrine of “ Separate But Equal”  
Facilities ___________       18
A. Reference to This Doctrine in the Gaines Case

Has Been Relied on by State Courts to Render 
the Decision Meaningless____________________ 18

B. The Doctrine of “ Separate But Equal”  Is
Without Legal Foundation __________________ 27

C. Equality Under a Segregated System Is a
Legal Fiction and a Judicial Myth.-_________  36
1. The General Inequities in Public Educa­

tional Systems Where Segregation is Re­
quired ________________________    37



11
PAGE

2. On the Professional School Level the In­
equities Are Even More Glaring_________ 40

D. There is No Rational Justification For Segre­
gation in Professional Education and Dis­
crimination Is a Necessary Consequence of 
Any Separation of Professional Students On
the Basis of Color___________________________  45

III— The Doctrine of “ Separate But Equal”  Facilities
Should Not Be Applied to This Case___________ 51

Conclusion__________________________________________  52

Table of Cases

'-^Bluford v. Canada, 32 F. Supp. 707 (1940) (appeal dis­
missed 8 Cir. 119 F. (2d) 779)_____________________ 23

Cantwell v. Connecticut, 310 U. S. 296________________  51
^Cummings v. Board of Education, 175 U. S. 528_______  35

G-Gong Lum v. Rice, 275 U. S. 78_______________________  35
Hirabayashi v. U. S., 320 U. S. 81____________________33, 52

'-Marsh v. Alabama, 326 U. S. 501______________________  51
(✓ Missouri ex rel. Gaines v. Canada, 305 U. S. 337 reh.

den. 305 U. S. 676_________________________ 11,18, 20, 21
(✓ Morgan v. Virginia, 328 U. S. 373____________________28, 51
Vpearson v. Murray, 169 Md. 478, 182 Atl. 590 (1936)___ 19
VPlessy v. Ferguson, 163 U. S. 537_______________ _____  31
'-'Railway Mail Association v. Corsi, 326 U. S. 88________  51

Roberts v. City of Boston, 5 Cush. 198 (1849)_________  32
vState ex rel. Bluford v. Canada, 348 Mo. 298, 153 S. W.

(2d) 12 (1941)____________________________________  24
CState ex rel. Gaines v. Canada, 344 Mo. 1238, 131 S. W.

(2d) 217 (1939)___________________________________  22
v State ex rel. Gaines v. Canada, 342 Mo. 121, 113 S. W.
. (2d) 783 (1937) _________________________________14,16

State ex rel. Michael v. Whitliam, 179 Tenn. 250, 165 S.
W. (2d) 378 (1942)________________________________ 25

Steele v. L. N. R. R. Co., 323 U. S. 192 _____ ___________  34
yStrauder v. West Virginia, 100 U. S. 303-------------------- 28, 30



I l l

Authorities Cited

PAGE

American Teachers Association, The Black and White 
of Rejections for Military Service (Aug. 1944)__ 39,48

Biennial Surveys of Education in the United States, 
Statistics of State School Systems, 1939-40 and 
1941-42 (1944) ___________________________________ 38

Blose, David T. and Ambrose Caliver, Statistics of the 
Education of Negroes (A Decade of Progress), 
Federal Security Agency, IT. S. Office of Education,
1942_____________________________________________  38

Cantril, H., Psychology of Social Movements (1941).... 47
Clark, W. W., “ Los Angeles Negro Children,”  Educa­

tional Research Bulletin (Los Angeles, 1923)_____  48
Dodson, Dan W., “ Religious Prejudices in Colleges” ,

The American Mercury (July 1946)______________  43
Klineberg, Otto, Race Differences (1935)__________   48
Klineberg, Otto, Negro Intelligence and Selectice Mi­

gration (New York, 1935)____________________   48
McGovney, D. 0., “ Racial Residential Segregation by 

State Court Enforcement of Restrictive Agree­
ments, Covenants or Conditions in Deeds is Uncon­
stitutional,”  33 Cal. L. Rev. 5 (1945)____________  49

McWilliams, Carey, “ Race Discrimination and the 
Law” , Science and Society, Volume IX, No. 1, 1945 46

Myrdal, Gunnar, An American Dilemma (New York, 
1944)--------------------------------- -------------------------------- 29, 46

National Survey of Higher Education for Negroes, Vol.
II, U. S. Office of Education, Washington, 1942._ . 42

Peterson, J. & Lanier, L. H., “ Studies in the Compara­
tive Ability of Whites and Negroes,”  Mental Mea­
surement Monograph, 1929__________________ ____ 48



IV
PAGE

Report of the President’s Committee on Civil Rights,
“ To Secure These Rights,”  Government Printing 
Office, Washington, 1947----------------- ---- ----------------46,51

Report of the President’s Commission on Higher Edu­
cation, “ Higher Education for American Democ­
racy” , Vol. I, Government Printing Office, Washing­
ton, 1947 ______________________________________ 39, 50

Sixteenth Census of the United States: Population,
Vol. m ,  Part 4 (1940)___________________________  40

Thompson, Charles H., “ Some Critical Aspects of the 
Problem of the Higher and Professional Education 
for Negroes,”  Journal of Negro Education (Fall, 
1945).____________________________________________  40

Warner, Lloyd W., New Haven Negroes (New Haven, 
1940)____________________________________________  49

Weltfish, Gene, “ Causes of Group Antagonism” , Vol. I, 
Journal of Social Issues_________________________ 47

Statutes Cited

M issouri
Revised Statutes 1929, Section 9618____ 15,16, 21, 23, 24

Oklahoma
Constitution, Article XIII-A, Section 2....— .... ... .15,16
Statutes, Sec. 1451B---------------------------------------------15,16

T ennessee
Chapter 43, Public Acts of 1941------------------------------  25



IN  TH E

Ihtpreme (knurl of llir Stutrli i>tatrn
October T erm, 1947 

No. 369

A da L ois S ipuel,
Petitioner,

v.

Board of R egents of the U niversity of 
Oklahoma, George L. Cross, M aurice 
H. M errill, George W adsack and R oy 
Gittinger,

Respondents.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF THE  

STATE OF OKLAHOMA

BRIEF FOR PETITIONER

Opinion of Court Below

The opinion of the Supreme Court of Oklahoma appears 
in the record filed in this cause (R. 35-51) and is reported 
a t ____Okla______ , 180 P. (2d) 135.

Jurisdiction

Jurisdiction of this Court is invoked under Section 237b 
of the Judicial Code (28 U. S. C. 344b) as amended February 
13, 1925.



2

The Supreme Court of Oklahoma issued its judgment in 
this case on April 29, 1947 (R. 51). Petition for rehearing 
was appropriately filed and was denied on June 24, 1947 
(R. 61). Petition for Certiorari was filed on September 20, 
1947, and was granted by this Court on November 10, 1947.

SUMMARY STATEMENT OF THE MATTER INVOLVED

1. Statement of the Case

Petitioner is a citizen and resident of the State of Okla­
homa. She desires to study law and to prepare herself for 
the legal profession. Pursuant to this aim, she applied for 
admission to the first-year class of the School of Law of the 
University of Oklahoma, a public institution maintained 
and supported out of public funds and the only public insti­
tution in the state offering facilities for a legal education. 
She was denied admission. Her qualifications for admission 
to this institution are undenied, and it is admitted that peti­
tioner, except for the fact that she is a Negro, would have 
been accepted as a first-year student in the School of Law 
of the University of Oklahoma, which is the only state insti­
tution offering instruction in law.

Upon being refused admission solely on account of her 
race and color, petitioner applied to the District Court of 
Cleveland County, Oklahoma, for a writ of mandamus 
against the Board of Regents of the University of Okla­
homa; George L. Cross, President; Maurice H. Merrill, 
Dean of the Law School; Roy Gittinger, Dean of Admis­
sions; and George Wadsack, Registrar, to compel her ad­
mission to the first-year class of the School of Law on the 
same terms and conditions afforded white applicants seek­
ing to matriculate therein (R. 2). The writ was denied



3

(R. 21) and on appeal this judgment was affirmed by the 
Supreme Court of the State of Oklahoma on April 29, 1947 
(R. 51). Petitioner duly entered a motion for a rehearing 
(R. 54) which was denied on June 24, 1947 (R. 61), where­
upon petitioner now seeks in this Court a review and re­
versal of the judgment below.

The action of respondents in refusing to admit peti­
tioner to the School of Law was predicated upon the 
grounds that: (1) such admission was contrary to the con­
stitution, law and public policy of the state; (2) that 
scholarship aid was offered by the state to Negroes to study 
law outside of the state; and, (3) that no demand had been 
made upon the Board of Regents of Higher Education to 
provide such legal training at Langston University, the 
state institution affording college and agricultural training 
to Negroes in the state.

The Supreme Court of Oklahoma held that:

“ We conclude that petitioner is fully entitled to 
education in law with facilities equal to those for 
white students, but that the separate education policy 
of Oklahoma is lawful and is not intended to be dis­
criminatory in fact, and is not discriminatory against 
plaintiff in law for the reasons above shown.

“ We conclude further that as the laws in Okla­
homa now stand this petitioner had rights in addi­
tion to those available to white students in that she 
had the right to go out of the state to the school of 
her choice with tuition aid from the state, or if she 
preferred she might attend a separate law school for 
Negroes in Oklahoma.

“ We conclude further that while petitioner may 
exercise here preference between those two educa-



4

tional plans, she must indicate that preference by 
demand or in some manner that may be depended 
upon, and we conclude that such requirement for no­
tice or demand on her part is no undue burden upon 
her.

“ We conclude that up to this time petitioner has 
shown no right whatever to enter the Oklahoma Uni­
versity Law School, and that such right does not exist 
for the reasons heretofore stated”  (R. 51).

In this Court petitioner reasserts her claim that the re­
fusal to admit her to the University of Oklahoma solely be­
cause of race and color amounts to a denial of the equal 
pretection of the laws guaranteed under the Fourteenth 
Amendment to the Federal Constitution in that the state is 
affording legal facilities for whites while denying such fa­
cilities to Negroes.

2. Statement of Facts

The facts in issue are uncontroverted and have been 
agreed to by both petitioner and respondents (R. 22-25). 
The following are the stipulated facts:

The petitioner is a resident and citizen of the United 
States and of the State of Oklahoma, County of Grady and 
City of Chicakasha, and desires to study law in the School 
of Law in the University of Oklahoma for the purpose of 
preparing herself to practice law in the State of Oklahoma 
(R. 22).

The School of Law in the University of Oklahoma is the 
only law school in the state maintained by the state and



5

under its control (R. 22). The Board of Regents of the 
University of Oklahoma is an administrative agency of the 
state and exercises over-all authority with reference to the 
regulation of instruction and admission of students in the 
University of Oklahoma. The University is a part of the 
educational system of the state and is maintained by appro­
priations from public funds raised by taxation from the citi­
zens and taxpayers of the State of Oklahoma (R. 22-23).

The School of Law of the University of Oklahoma spe­
cializes in law and procedure which regulate the govern­
ment and courts of justice in Oklahoma, and there is no 
other law school maintained by public funds of the state 
where the petitioner can study Oklahoma law and pro­
cedure. The petitioner will be placed at a distinct disad­
vantage at the Bar of Oklahoma and in the public service 
of the aforesaid state with respect to persons who have 
had the benefit of unique preparation in Oklahoma law and 
procedure offered at the School of Law of the University 
of Oklahoma unless she is permitted to attend the aforesaid 
institution (R. 23).

The petitioner has completed the full college course at 
Langston University, a college maintained and operated by 
the State of Oklahoma for the higher education of its Negro 
citizens (R. 23).

The petitioner made due and timely application for ad­
mission to the first-year class of the School of Law of the 
University of Oklahoma on January 14,1946, for the semes­
ter beginning January 15, 1946, and then possessed and 
still possesses all the scholastic and moral qualifications re­
quired for such admission (R. 23).

On January 14, 1946, when petitioner applied for admis­
sion to the said School of Law, she complied with all of the



6

rules and regulations entitling her to admission by filing 
with the proper officials of the University an official tran­
script of her scholastic record. The transcript was duly 
examined and inspected by the President, Dean of Admis­
sions, and Registrar of the University (all respondents 
herein) and was found to be an official transcript entitling 
her to admission to the School of Law of the said University 
(R. 23).

Under the public policy of the State of Oklahoma, as 
evidenced by constitutional and statutory provisions re­
ferred to in the answer of respondents herein, petitioner 
was denied admission to the School of Law of the Uni­
versity of Oklahoma solely because of her race and color 
(R, 23-24).

The petitioner, at the time she applied for admission to 
the said School of Law of the University of Oklahoma, was 
and is now ready and willing to pay all of the lawful 
charges, fees and tuitions required by the rules and regula­
tions of the said university (R. 24).

Petitioner had not applied to the Board of Regents of 
Higher Education to prescribe a school of law similar to 
the School of Law of the University of Oklahoma as a part 
of the standards of higher education of Langston Uni­
versity and as one of the courses of study thereof (R. 24).

It was further stipulated between the parties that after 
the filing of this case, the Board of Regents of Higher Edu­
cation: (1) had notice that this case was pending; and, (2) 
met and considered the questions involved herein; and, (3) 
had no unallocated funds on hand or under its control at the 
time with which to open up and operate a law school and 
has since made no allocations for such a purpose (R. 24-25).



7

Assignment of Errors

The Supreme Court of Oklahoma erred:

(1) In holding that the separate education policy of Okla­
homa is lawful and is not intended to be discriminatory 
in fact, and is not discriminatory against plaintiff in 
law for the reasons above shown.

(2) In holding that as the laws in Oklahoma now stand this 
petitioner had rights in addition to those available to 
white students in that she had the right to go out of 
the state to the school of her choice with tuition aid 
from the state, or if she preferred she might attend a 
separate law school for Negroes in Oklahoma.

(3) In holding that while petitioner may exercise her 
preference between those tw7o educational plans, she 
must indicate that preference by demand or in some 
manner that may be depended upon, and that such re­
quirement for notice or demand on her part is no undue 
burden upon her.

(4) In holding that petitioner has shown no right whatever 
to enter the Oklahoma University Law School, and that 
such right does not exist for the reasons heretofore 
stated.

(5) In affirming the judgment of the trial court.

Question Presented

The Petition for Certiorari in the instant case presented
the following question:

Does the Constitution of the United States Prohibit 
the Exclusion of a Qualified Negro Applicant Solely 
Because of Race from Attending the Only Law School 
Maintained By a State?



8

OUTLINE OF ARGUMENT

I

The Supreme Court of Oklahoma erred in not ordering 
the lower court to issue a writ requiring the respon­
dents to admit petitioner to the only existing law 
school maintained by the state.

II

This Court should re-examine the constitutionality of 
the doctrine of “ separate but equal” facilities.

A. Reference to this doctrine in the Gaines case has 
been relied on by state courts to render the decision 
meaningless.

B. The doctrine of “separate but equal” facilities is 
without legal foundation.

C. Equality under a segregated system is a legal fiction 
and a judicial myth.

1. The general inequities in public educational sys­
tems where segregation is required.

2. On the professional school level the inequities are 
even more glaring.

D. There is no rational justification for segregation in 
professional education and discrimination is a neces­
sary consequence of any separation of professional 
students on the basis of color.

III
The doctrine of “ separate but equal” facilities should 

not be applied to this case.



9

Summary of Argument

Petitioner here is asserting a constitutional right to a 
legal education on par with other persons in Oklahoma. 
This right can be protected only by petitioner’s admission 
to tlie law school of the University of Oklahoma, the only 
existing facility maintained by the state. Petitioner, there­
fore, sought a mandatory writ requiring her admission to 
the University of Oklahoma. The state courts have refused 
to grant the relief sought principally because of statutes 
requiring the separation of the races in the state’s school 
system. Petitioner contends that the questions presented 
in this appeal were settled by this Court in Missouri ex rel. 
Gaines v. Canada and that her case both as to facts and law 
comes within the framework of the Gaines case.

Petitioner, however, is forced to raise anew the issue 
considered settled by that decision chiefly because the opin­
ion in the Gaines case was amenable to an interpretation 
that this Court admitted the right of a state to maintain 
a segregated school system under the equal but separate 
theory even where, as here, no provision other than the 
existing facility which is closed to Negroes is available to 
petitioner. Reference to this doctrine has not only be­
clouded the real issues in cases of this sort but in fact bas 
served to nullify petitioner’s admitted rights.

Petitioner is entitled to admission now to the University 
of Oklahoma and her right to redress cannot be conditioned 
upon any prior demand that the state set up a separate 
facility. The opinion in Gaines case is without meaning 
unless this Court intended that decision to enforce the right 
of a qualified Negro applicant in a case such as here to 
admission instanter to the only existing state facility. The



10

equal but separate doctrine has no application in cases of 
this type. The Gaines decision must have meant at least 
this and should be so clarified. Beyond that petitioner con­
tends that the separate but equal doctrine is basicly unsound 
and unrealistic and in the light of the history of its applica­
tion should now be repudiated.

ARGUM ENT

I
The Supreme Court of Oklahoma Erred in Not Order­

ing the Lower Court to Issue a W rit Requiring the 
Respondents to Admit Petitioner to the Only Exist­
ing Law School Maintained by the State.

Petitioner’s constitutional right to a legal education 
arose at the time she made application, as a qualified citizen, 
for admission into the state law school. This privilege ex­
tends to all qualified citizens of Oklahoma and the denial 
thereof to this petitioner constitutes a violation of the Four­
teenth Amendment to the United States Constitution. That /
the action of respondents, constituting the Board of Regents 
of the University of Oklahoma, must be regarded as state 
action has conclusively been established in a long line of 
decisions by this Court, and is not in issue in this case.

It is admitted that: (1) petitioner was qualified to enter 
the law school at the time application was made; that she 
was qualified at the time this case was tried and is now 
qualified; (2) the law school at the University of Oklahoma 
is the only existing facility maintained by the state for the 
instruction of law; (3) petitioner has been denied admission 
to the University law school solely because of race and color; 
(4) respondents herein are state officials. There is no ques­
tion but that if petitioner were not a Negro she would have 
been admitted to the University of Oklahoma Law School.



11

That petitioner had a clear right under these facts to 
have the writ issued requiring these respondents to admit 
her into the State law school was expressly established by 
this Court in Missouri ex rel. Gaines v. Canada}

The Supreme Court of Oklahoma in affirming the lower 
court’s denial of the writ relied upon (1) the segregation 
laws of the state requiring separate educational facilities 
for white and Negro citizens; and, (2) that as a result of 
these segregation statutes a duty was placed upon the peti­
tioner to make a “ demand”  for the establishment of a sepa­
rate law school at some time in the future before applying 
to the University Law School. This new duty as a con­
dition precedent to the exercise of her right to a legal edu­
cation is placed upon petitioner solely because of the segre­
gation statutes of Oklahoma.

The writ was not issued and petitioner has not been ad­
mitted to the only existing law school because the Supreme 
Court of Oklahoma committed error in not following the 
Gaines case, but adopting just the opposite point of view 
which has deprived petitioner of her constitutional right not 
to be discriminated against because of race and color. Under 
the facts in this case the writ should have been issued.

In the Gaines case, petitioner (1) was qualified to seek 
admission into the state law school in Missouri; (2) the 
law school at Missouri was the only law school maintained 
by the State for the instruction of law; (3) Gaines was de­
nied admission to the law school solely on account of race 
and color; and, (4) respondents in the Gaines case were 
state officers. There, this Court held that, despite the find­
ing of the Supreme Court of Missouri that a policy of segre­
gation in education existed in the State, a provision for 
out-of-state aid for Negro students did not satisfy the Four- 1

1 305 U. S. 337 (rehearing denied 305 U. S. 676).



12

teenth Amendment and Gaines was declared entitled to be 
admitted into the state law school “ in the absence of other 
and proper provisions for his legal training within the 
state.”  This Court recognized the fact that no prior de­
mand had been made upon the Curators of Lincoln Uni­
versity to set up a separate law school for Negroes.2

The Oklahoma Supreme Court erroneously relies upon 
the Gaines case for the proposition that “ the authority of a 
State to maintain separate schools seems to be universally 
recognized by legal authorities”  (E. 39). Mr. Chief Justice 
H ughes adequately answered this argument as follows:

‘ ‘ The admissibility of laws separating races in the 
enjoyment of privileges afforded by the state rests 
wholly upon the quality of privileges which the laws 
give to separated groups within the state.” 3

The Oklahoma Supreme Court held that the segregation 
laws of the State prevent petitioner from entering the only 
state law school:

“ It seems clear to us that since our State policy 
of separate education is lawful, the petitioner may 
not enter the University Law School maintained for 
white pupils”  (B. 44).

The court concluded that this separation policy is not dis­
criminatory against petitioner (E. 51). The reasons ad­
vanced for this conclusion have been adequately met in the 
Gaines case and disposed of favorably to petitioner herein.

In seeking to justify the policy of segregation, which 
provides no law training for Negroes within the State, the 
Oklahoma Supreme Court also relies upon out-of-state

2 305 U. S. 337, 352.
3 Ibid., at p. 349.



13

scholarship aid—a point completely dcliors the record in 
this case. The court stated:

“ If a white student desires education in law at an 
older law school outside the State, he must fully pay 
his own way while a Negro student from Oklahoma 
might be attending the same or another law school 
outside the State, but at the expense of this State.

“ It is a matter of common knowledge that many 
white students in Oklahoma prefer to and do receive 
their law training outside the State at their own ex­
pense in preference to attending the University law 
school. Perhaps some among those now attending the 
University Law School would have a like preference 
for an older though out-of-state school but for the 
extra cost to them.

“ Upon consideration of all facts and circum­
stances it might well be, at least in some cases, that 
the Negro pupil who receives education outside the 
state at state expense is favored over his neighbor 
white pupil rather than discriminated against in that 
particular”  (R. 43).

On this point the Gaines case is clear:

“ We think that these matters are beside the point. 
The basic consideration is not as to what sort of 
opportunities other states provide, or whether they 
are as good as those in Missouri, but as to what 
opportunities Missouri itself furnishes to white stud­
ents and denies to Negroes solely upon the ground of 
color.” 4

Under the facts in this case such a policy applied to peti­
tioner is unconstitutional and the suggested substitutes of 
requiring her to elect either out-of-state aid, or demand that 
a new institution be erected for her, are inadequate to meet 
the requirements of equal protection of the law. This addi­
tional duty of requiring petitioner to make a demand upon

4 305 U. S. 337, 349.



14

the Board of Higher Education of Oklahoma to establish a 
separate law school before being able to successfully assert 
a denial by the state of her right to a legal education comes 
by virtue of the segregation statutes of Oklahoma. Clearly 
this duty devolves only upon Negroes and not upon white 
persons and is in itself discriminatory.

There is a striking similarity between the decisions of 
the state courts in the Gaines case and this case on the 
question of the petitioner’s alleged duty to make a “ de­
mand”  for a separate law school as a condition precedent 
to application to the existing law school.

In the Gaines case, the Supreme Court of Missouri 
stated: “ Appellant made no attempt to avail himself of 
the opportunities afforded the Negro people of the State 
for higher education. He at no time applied to the manage­
ment of the Lincoln University for legal training.” 5

In the decision of the Oklahoma Supreme Court in this 
case, the court stated:

“ Here petitioner Sipuel apparently made no ef­
fort to seek in law in a separate school”  (R. 47).

A  further similarity exists in the statutes of the two 
states, neither of which could reasonably be interpreted to 
place a mandatory duty upon the governing body to supply 
facilities for a legal education to Negro students within the 
state although the Supreme Court of Oklahoma declared 
that had petitioner applied for such legal education, “ it 
would have been their duty to provide for her an oppor­

5 113 S. W . 2d 783, 789 (1937). In the face of this clear statement 
of the facts by the Missouri Court in the Gaines case, the Oklahoma 
court stated that the facts were completely contrary: “ Thus, in Mis­
souri, there was application for and denial of that which could have 
been lawfully furnished, that is, law education in a separate school 
. . . ”  (R . 45).



15

tunity for education in law at Langston or elsewhere in 
Oklahoma”  (R. 45). In the Gaines case, the statute (Sec­
tion 9618, Missouri Revised Statute 1929) provides that the 
Board of Curators of Lincoln University were required so 
to reorganize that institution as to afford for Negroes 
“ training up to the standard furnished by the state uni­
versity of Missouri whenever necessary and practicable in 
their opinion.”  This Court interpreted that statute as 
not placing a mandatory duty upon the Missouri officials.

In Oklahoma, the 1945 amendments provided, in Section 
1451 B, that the Board of Regents of Oklahoma Agricul­
tural and Mechanical College should control Langston Uni­
versity and should “ do any and all things necessary to make 
the university effective as an educational institution for 
Negroes of the State.”

In addition, the Oklahoma Constitution, Article XIII-A, 
section 2, provides in part:

“ The Regents shall constitute a co-ordinating 
board of control for all State institutions described 
in section 1 hereof, with the following specific 
powers: (1) it shall prescribe standards of higher 
education applicable to each institution; (2) it shall 
determine the function and courses of study in each 
of the institutions to conform to the standards pre­
scribed; . . . ”

These vague provisions, lacking even the comparison 
with the standards of the “ white”  university which were 
present in the Missouri statute, were construed by the state 
court as placing a mandatory duty upon the Board of 
Regents to provide education in law for petitioner within 
the State of Oklahoma. Such a duty was not found by the



16

court to come directly from the statute but to flow from 
the requirement of the segregation policy of the state itself.

The Supreme Court of Oklahoma in construing its stat­
utes concerning higher education held that these statutes 
placed a mandatory duty upon the State Regents for Higher 
Education to establish a Negro law school upon demand:

“ When we realize that and consider the pro­
visions of our State Constitution and Statutes as to 
education, we are convinced that it is the mandatory 
duty of the State Regents for Higher Education to 
provide equal educational facilities for the races to 
the full extent that the same is necessary for the 
patronage thereof. That board has full power, and 
as we construe the law, the mandatory duty to pro­
vide a separate law school for Negroes upon demand 
or substantial notice as to patronage therefor.”  
(Italics ours—R. 50.)

The Supreme Court of Missouri in construing its stat­
utes as to higher education for Negroes concluded that:

“ In Missouri the situation is exactly opposite (to 
Maryland). Section 9618 R. S. 1929 authorizes and 
requires the board of curators of Lincoln University 
‘ to reorganize said institution so that it shall afford 
to the Negro people of the state opportunity for 
training up to the standard furnished at the state 
university of Missouri whenever necessary and prac­
ticable in their opinion.’ This statute makes it the 
mandatory duty of the board of curators to estab­
lish a law school in Lincoln University ivhenever nec­
essary or practical.”  (Italics ours— 113 S. W. 2d 
783, 791.)

This Court in passing upon the construction of the Supreme 
Court of Missouri of its statutes stated:

“ The state court quoted the language of Section 
9618, Mo. Rev. Stat. 1929, set forth in the margin,



17

making it the mandatory duty of the board of cura­
tors to establish a law school in Lincoln University 
‘ whenever necessary and practicable in their opin­
ion.’ This qualification of their duty, explicitly 
stated in the statute, manifestly leaves it to the judg­
ment of the curators to decide when it will be neces­
sary and practicable to establish a law school, and 
the state court so construed the statute”  (305 U. S. 
337, 346-347).

Further evidence that the Supreme Court of Oklahoma 
completely ignored the opinion of this Court in the Gaines 
case appears from the misstatement of fact that Gaines 
actually applied for admission to a separate Negro school 
in Missouri where there was no law school in existence. On 
this point the Oklahoma Supreme Court stated:

“ The opinion does not disclose the exact nature 
of his (Gaines) communication or application to 
Lincoln University, but since Gaines was following 
through on his application for and his efforts to ob­
tain law school instruction in Missouri, we assume 
he applied to Lincoln University for instruction 
there in the law.”  (Italics ours—R. 44.)

“ This he did when he made application to Lin­
coln University as above observed, but this petitioner 
Sipuel wholly failed to do”  (R, 46).

“ Apparently petitioner Gaines in Missouri was 
seeking first that to which he was entitled under the 
laws of Missouri, that is education in law in a sepa­
rate school”  (R. 47).

The actual facts, as this Court indicated in its opinion in 
the Gaines case, are that Gaines only applied to the Uni­
versity Law School maintained by the State. The record 
in the Gaines case clarifies this point:

“ Q. Now you never at any time made an applica­
tion to Lincoln University or its curators or its offi­



18

cers or any representative for any of the rights, 
whatever, given you by the 1921 statute, namely, 
either to receive a legal education at a school to be 
established in Lincoln University or, pending that, 
to receive a legal education in a school of law in a 
state university in an adjacent state to Missouri, and 
Missouri paying that tuition,—you never made ap­
plication for any of those rights, did you? A. No 
sir.”  6

Mr. Chief Justice H ughes in the Gaines opinion quite cor­
rectly states the facts:

“ In the instant case, the state court did note that 
petitioner had not applied to the management of 
Lincoln University for legal training.”  7

The Supreme Court of Oklahoma has shown no valid 
distinction between this case and the Gaines case. Their 
efforts to distinguish the two cases are shallow and without 
merit. In refusing to grant the relief prayed for in this 
case the State of Oklahoma has demonstrated the inevitable 
result of the enforcement of the doctrine of “ separate but 
equal”  facilities, viz, to enforce the policy of segregation 
without any pretext of giving equality.

II
This Court Should Re-Examine the Constitutionality of

the Doctrine of “Separate But Equal” Facilities.

A. Reference to This Doctrine in the Gaines Case Has 
Been Relied on by State Courts to Render the Deci­
sion Meaningless.

Petitioner herein is seeking a legal education on the 
same basis as other students possessing the same qualifi­

6 Transcript of Record Gaines v. Canada, et al. No. 57, October 
Term, 1938, p. 85.

7 Missouri ex rel. Gaines v. Canada, 305 U. S. 337, 352.



19

cations. The State of Oklahoma in offering a legal educa­
tion to qualified applicants is prohibited by the Fourteenth 
Amendment from denying these facilities to petitioner 
solely because of her race or color. Although the Four­
teenth Amendment is a prohibition against the denial to 
petitioner of this right, it is at the same time an affirmative 
protection of her right to be treated as all other similarly 
qualified applicants without regard to her race or color.

Respondents rely upon Oklahoma’s segregation statutes 
as grounds for the denial of petitioner’s rights. In order 
to bolster their defense, they seek to place upon petitioner 
the duty of taking steps to have established a separate law 
school at an indefinite time and at an unspecified place 
without any guarantee whatsoever as to equality in either 
the quantity or quality of these theoretical facilities.

The “ separate but equal”  doctrine, based upon the as­
sumption that equality is possible within a segregated sys­
tem, has been used as the basis for the enforcement of the 
policy of segregation in public schools. The full extent of 
the evil inherent in this premise is present in this case 
where the “ separate but equal”  doctrine is urged as a com­
plete defense where the state has not even made the pretense 
of establishing a separate law school.

In the first reported case on the right of a qualified 
Negro applicant to be admitted to the only existing law 
school maintained by the state, the Court of Appeals of 
Maryland, in the face of a state policy of segregation, de­
cided that the Fourteenth Amendment entitled the Negro 
applicant to admission to the only facility maintained:

“ Compliance with the Constitution cannot be de­
ferred at the will of the state. Whatever system it 
adopts for legal education now must furnish equality 
of treatment now.” 8

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



20

The second case involving this point reached this Court 
on a petition for a writ of certiorari to the Supreme Court 
of Missouri.9 The facts in the Gaines case were similar to 
those in the Pearson case except that there was no statu­
tory authorization for the establishment of a separate law 
school for Negroes in Maryland, whereas the State of Mis­
souri contended that there was statutory authorization for 
the establishment of a separate law school with a provision 
for out-of-state scholarships during the interim.

This Court, in reversing the decision of the Supreme 
Court of Missouri (which affirmed the lower court’s judg­
ment refusing to issue the writ of mandamus), held that 
the offering of out-of-state scholarships pending possible 
establishment of a Negro law school in the future within 
the state, did not constitute equal educational opportunities 
within the meaning of the Fourteenth Amendment. Mr. 
Chief Justice H ughes, in the majority opinion held: “ that 
petitioner was entitled to be admitted to the law school of 
the State University in the absence of other and proper 
provision for his legal training within the State. ” 0a This 
issue, as framed by the Court, made unnecessary to its 
decision any holding as to what the decision might be if 
the state had been offering petitioner opportunity for a 
legal education in a Negro law school then in existence in 
the state.

At the time of its rendition, the Gaines decision was 
considered a complete vindication of the right of Negroes to 
admission to the only existing facility afforded by the state, 
even in the face of a state policy and practice of segrega­
tion. This decision, in fact, was considered as being at 
least as broad and as far reaching as Pearson v. Murray,

9 Missouri ex rel. Gaines v. Canada, 305 U. S. 337. 
9a 305 U. S. 337, 352.



21

supra. This apparently was the intent and understanding 
of the Court itself, for Mr. Justice M cR eynolds, in a sepa­
rate opinion, construed the opinion as meaning that either 
the state could discontinue affording legal training to whites 
at the University of Missouri, or it must admit petitioner 
to the only existing law school.

The Court’s reference to the validity of segregation 10 
laws and its discussion of whether or not there wTas a man­
datory duty upon the Board of the Negro College in Mis­
souri to establish the facilities demanded in a separate 
school, however, has created unfortunate results. Because of 
this language, courts in subsequent cases, while purporting 
to follow the Gaines decision, have in reality so interpreted 
this decision as to withhold the protection which that case 
intended.

When the Gaines case was remanded to the state court 
after decision here, the Missouri Supreme Court, in quot­
ing from this Court’s opinion, placed great reliance upon 
that portion of the opinion which said:

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

By then, Section 9618 of the Missouri Statutes Annotated 
had been repealed and reenacted and was construed as 
placing a mandatory duty upon the Board of Curators of 
the Lincoln University (the Negro college) to establish a 
law school for Negroes. The court concluded that the issu­

10 “ The State has sought to fulfill that obligation by furnishing equal 
facilities in separate schools, a method the validity of which has been 
sustained by our decisions.”  Missouri ex rel. Gaines v. Canada 305 
U. S. 337, 344.



22

ance of the writ would be denied if, by the time the case was 
again tried, the facilities at Lincoln University were equiva­
lent to those of the University of Missouri and gave the 
state until the following September to establish such facili­
ties. If they were not equivalent, the writ would be granted. 
Said the court:

“ We are unwilling to undertake to determine con­
stitutional adequacy of the provision now made for 
relator’s legal education within the borders of the 
state by the expedient of coupling judicial notice with 
a presumption of law . . . ”  (131 S. W. 2d 217,
219-220.)

Hence, the Missouri Supreme Court in the second Gaines 
case construed the opinion of this Court as not requiring 
the admission of the petitioner to the existing law school 
but as giving to the State of Missouri at that late date the 
alternative of setting up a separate law school in the future. 
In the event the state exercised that option, petitioner would 
have the right to come into court and test the equality of 
the provisions provided for him as compared with those 
available at the University of Missouri. If no facilities 
were available or those available were unequal, he would 
then be entitled to admission to the University of Missouri 
law school.

Petitioner filed his application for writ of mandamus 
in the Gaines case in 1936. The case reached this Court in 
1938. It was then returned to the Supreme Court of Mis­
souri, and a decision rendered in August 1939. Thereafter, 
the state was given an additional several months to set up 
a law school. Then, petitioner would be entitled to come in 
again and test the equality of the provisions. Presumably, 
therefore, by 1941, four years after he asserted his right 
to admission to the Law School of the University of Mis­



23

souri, petitioner might get some redress. During this 
period of time, white students in the class to which he be­
longed would have graduated from law school and would 
have been a year or perhaps more in the actual practice of 
law.

Shortly after the Gaines case, another suit was started 
by a Negro based upon the refusal of the registrar of the 
University of Missouri to admit her to the School of 
Journalism, it being the only existing facility within the 
state offering a course in journalism. Suit was brought 
in the U. S. District Court seeking damages and was dis­
missed. The District Court adopted the construction of 
Section 9618 of Missouri Statutes Annotated, which the 
State Supreme Court had followed in the second Gaines 
decision, and it found that the statute placed a mandatory 
duty on the Board of Curators of Lincoln University to 
set up a School of Journalism for Negroes upon proper 
demand.

In answering plaintiff’s contention that the rights she 
asserted had been upheld by this Court in the Gaines case, 
the District Court said:

“  . . . While this court is not bound by the State 
court’s construction of the opinion of the Supreme 
Court, much respect is due the former court’s opinion 
that the Gaines case did not deprive the State of 
a reasonable opportunity to provide facilities, de­
manded for the first time, before it abrogated its 
established policy of segregation.” 11

And in dismissing the case, it stated the following as what 
it felt her rights to be under the holding of this Court in the 
Gaines case:

“ Since the State has made provision for equal 
educational facilities for Negroes and has placed the

11 Bluford v. Canada, 32 F. Supp. 707, 710 (1940).



24

mandatory duty upon designated authorities to pro­
vide those facilities, plaintiff may not complain that 
defendant has deprived her of her constitutional 
rights until she has applied to the proper authorities 
for those rights and has been unlawfully refused. 
She may not anticipate such refusal.” 12

Thus, the District Court construed the Gaines case as 
requiring a petitioner to apply to the board of the Negro 
college where a statutory duty was placed upon them to 
provide the training desired and await their refusal before 
he could assert any denial of equal protection, even in the 
face of the patent fact that there was only one facility in 
existence at the time of application which was maintained 
exclusively for whites.

The next case was State ex rel. Bluford v. Canada, 153 
S. W. (2d) 12 (1941). Petitioner in this case sought by 
writ of mandamus to compel her admission to the School of 
Journalism at the University of Missouri. The court de­
nied the writ on the ground that the state could properly 
maintain a policy of segregation and that its right to so do 
had this Court’s approval. Section 9618 of the Missouri 
Statutes Annotated was again construed as placing upon 
the Board of Curators of Lincoln University a mandatory 
duty to establish facilities at Lincoln University equal to 
those at the University of Missouri. The court held that 
although no School of Journalism was available there, the 
board was under a duty to open new departments on de­
mand and was entitled to a reasonable time after demand 
to establish the facility. Only after a demand of the board 
of the Negro college and a refusal within a reasonable time, 
or an assertion by the board that it was unable to establish 
the facility demanded, would admission of a Negro to the 
existing facility be granted. This decision construed the

12 32 Fed. Supp. 707, 711.



25

Gaines case as meaning that a Negro must not only first 
make a demand upon the board of the Negro school, but 
that there must either be an outright refusal or failure to 
establish the facilities within a reasonable time before a 
petitioner could successfully obtain redress to which he was 
entitled under the Gaines decision.

In 1942, in the case of State ex rel. Michael v. Whitham 
(165 S. W. (2d) 378), six Negroes sought by writ of man­
damus admission to the graduate and professional schools 
of the University of Tennessee. The cases were consolidated, 
and while pending, the state passed a statute on February 
13, 1941, Chapter 43 of the Public Acts of 1941, which stated 
in part as follows:

“ Be it enacted by the General Assembly of the 
State of Tennessee, That the State Board of Edu­
cation and the Commissioner of Education are hereby 
authorized and directed to provide educational train­
ing and instruction for Negro citizens of Tennessee 
equivalent to that provided at the University of Ten­
nessee for white citizens of Tennessee.”

The court held that the Board of Education was under 
a mandatory duty to establish graduate facilities and pro­
fessional training for Negroes equivalent to that at the 
University of Tennessee upon demand and a reasonable ad­
vance notice. The statute, the court held, provided a com­
plete and full method by which Negroes may obtain edu­
cational training and instruction equivalent to that at the 
University of Tennessee.

As the Gaines case was there construed, a Negro seeking 
professional or graduate training offered whites at the State 
University must: (1) first make a demand for training in a 
separate school of the Board charged with the duty of pro­
viding equal facilities for Negroes; and, (2) give that Board



26

a reasonable time thereafter to set up the separate facility 
before a petitioner could successfully bring himself within 
the holding of the Gaines case. Even the mere statutory 
declaration of intent adopted while the case was pending, 
although unfulfilled, was found by the Tennessee Supreme 
Court to be an adequate answer to petitioner’s assertion of 
a denial of equal protection. And this even though this 
Court had clearly and conclusively disposed of that con­
tention in the Gaines case.

Finally, the State of Oklahoma, relying upon these latter 
decisions, refused to admit petitioner to the law school of 
the University of Oklahoma on the grounds that the segre­
gation statutes of Oklahoma are a complete bar to peti­
tioner’s claimed right to attend the only law school main­
tained by the state and that she must, therefore, make a 
demand on certain officials to establish a separate law school 
for her.

The Supreme Court of Oklahoma, therefore, construed 
the decision in the Gaines case as follows: “ The reasoning 
and spirit of that decision of course is applicable here, that 
is, that the state must provide either a proper legal training 
for petitioner in the state, or admit petitioner to the Uni­
versity Law School. But the very existence of the option 
to do the one or the other imports the right or an oppor­
tunity to choose the one of the two courses which will follow 
the fixed policy of the state as to separate schools, and 
before the courts should foreclose the option the oppor­
tunity to exercise it should be accorded”  (R. 47).

At the very least the Gaines case means, we submit, that 
a state cannot bar a qualified Negro from the only existing 
facility in spite of its policy of segregation. Moreover, the 
burden of decision as to whether the segregated system will 
be maintained is upon the state and not upon an aggrieved



27

Negro who seeks the protection of the federal constitution. 
As a party whose individual constitutional rights have been 
infringed, petitioner is entitled to admission to the law 
school of the University of Oklahoma now. Any burden 
placed upon her which is not required of other law school 
applicants is a denial of equal protection. Her rights iannot 
be defeated nor her assertion thereof he burdened by re­
quiring that she demand a state body to provide her with 
a legal education at some future time. The state is charged 
with the responsibility of giving her equal protection at 
the time she is entitled to it. The shams and legalism which 
have been raised to bar her right to redress must not be 
allowed to stand in the way.

The basic weakness of the Gaines decision was that while 
recognizing that petitioner’s only relief and redress was 
admission to the existing facility, the opinion created the 
impression that this Court would give its sanction even in 
cases of this type, to a state’s reliance upon the “ equal but 
separate”  doctrine. This Court, therefore, must reexamine 
the basis for its statement asserting the validity of racial 
separation which statement has been used to deny to peti­
tioner the protection of the constitutional right to which 
she is entitled.

B. The Doctrine of “ Separate But Equal” Is Without 
Legal Foundation.

Classifications and distinctions based on race or color 
have no moral or legal validity in our society. They are 
contrary to our constitution and laws, and this Court has 
struck down statutes, ordinances or official policies seeking 
to establish such classifications. In the decisions concerning 
intrastate transportation and public education, however, 
this Court appears to have adopted a different and anti-



28

tbetical constitutional doctrine under which racial separa­
tion is deemed permissible when equality is afforded. An 
examination of these decisions will reveal that the “ separate 
but equal”  doctrine is at best a bare constitutional hypothe­
sis postulated in the absence of facts showing the circum­
stances and consequences of racial segregation and based 
upon a fallacious evaluation of the purpose and meaning 
inherent in any policy or theory of enforced racial sepa­
ration.

Many states have required segregation of Negroes from 
all other citizens in public schools and on public convey­
ances. The constitutionality of these provisions has seldom 
been seriously challenged. No presumption of constitu­
tionality should be predicated on this non-action. A similar 
situation existed for many years in the field of interstate 
travel where state statutes requiring segregation in inter­
state transportation were considered to be valid and en­
forced in several states for generations and until this Court 
in 1946 held that such statutes were unconstitutional when 
applied to interstate passengers.13

The Thirteenth, Fourteenth and Fifteenth Amendments 
were adopted for the purpose of securing to a recently 
emancipated race all the civil rights of other citizens.14 
Unfortunately this has not been accomplished. The legisla­
tures and officials of the southern states have, through 
legislative policy, continued to prevent Negro citizens from 
obtaining their civil rights by means of actions which only 
gave lip service to the word “ equal.”  One of the most 
authoritative studies made of the problem of the Negro in 
the United States points out that:

“ While the federal Civil Rights Bill of 1875 was 
declared unconstitutional, the Reconstruction Amend- * 11

13 Morgan v. Virginia, 328 U. S. 373.
11 Strauder v. West Virginia; 100 U. S. 303.



29

merits to the Constitution—which provided that the 
Negroes are to enjoy full citizenship in the United 
States, that they are entitled to ‘ equal benefit of all 
laws,’ and that ‘ no state shall make or enforce any 
law which shall abridge the privileges and immunities 
of citizens of the United States’—could not be so 
easily disposed of. The Southern whites, therefore, 
in passing their various segregation laws to legalize 
social discrimination, had to manufacture a legal fic­
tion of the same type as we have already met in the 
preceding discussion on politics and justice. The 
legal term for this trick in the social field, expressed 
or implied in most of the Jim Crow statutes, is 
‘ separate but equal.’ That is, Negroes were to get 
equal accommodations, but separate from the whites. 
It is evident, however, and rarely denied, that there 
is practically no single instance of segregation in the 
South which has not been utilized for a significant 
discrimination. The great difference in quality of 
service for the two groups in the segregated set-ups 
for transportation and education is merely the most 
obvious example of how segregation is an excuse for 
discrimination. Again the Southern white man is in 
the moral dilemma of having to frame his laws in 
terms of equality and to defend them before the 
Supreme Court—and before his own better con­
science, which is tied to the American Creed—while 
knowing all the time that in reality his laws do not 
give equality to Negroes, and that he does not want 
them to do so.”  15

In one of the early cases interpreting these amend­
ments it was pointed out that: “ At the time when they were 
incorporated into the Constitution, it required little knowl­
edge of human nature to anticipate that those who had 
long been regarded as an inferior and subject race would, 
when suddenly raised to the rank of citizenship, be looked 
upon with jealousy and positive dislike, and that state laws

]S Gunnar Myrdal, An American Dilemma (1944), Vol. 1, pages 
580, 581.



30

might be enacted or enforced to perpetuate the distinctions 
that had before existed. Discrimination against them had 
been habitual. It was well known that, in some States, laws 
making such discriminations then existed, and others might 
well be expected. . . . They especially needed protection 
against unfriendly action in the States where they were 
resident. It was in view of these considerations the 14th 
Amendment was framed and adopted. It was designed to 
assure to the colored race the enjoyment of all of the civil 
rights that under the law are enjoyed by white persons, and 
to give to that race the protection of the General Govern­
ment, in that enjoyment, whenever it should be denied by 
the States. It not only gave citizenship and the privileges 
of citizenship to persons of color, but it denied to any State 
the power to withhold from them the equal protection of the 
laws, and authorized Congress to enforce its provisions by 
appropriate legislation.” 16

Mr. Justice S tkong in this opinion also stated: “ The 
words of the Amendment, it is true, are prohibitory, but 
they contain a necessary implication of a positive immunity, 
or right, most valuable to the colored race— the right to 
exemption from unfriendly legislation against them dis­
tinctly as colored; exemption from legal discrimination, im­
plying inferiority in civil society, lessening the security of 
their enjoyment of the rights which others enjoy, and dis­
criminations which are steps towards reducing them to the 
condition of a subject race.” 17

It is unfortunate that the first case to reach this Court 
on the question of whether or not segregation of Negroes 
was a violation of the Fourteenth Amendment should come 
during the period immediately after the Civil War when

10 Strauder v. W est Virginia, supra, at 306.
17 Ibid.



31

the Fourteenth Amendment was regarded as a very narrow 
limitation on state’s rights.

The first expression by this Court of the doctrine of 
“ separate but equal”  facilities in connection with the re­
quirements of equal protection of the law appears in the 
case of Plessy v. Ferguson}6 That case involved the validity 
of a Louisiana statute requiring segregation on passenger 
vehicles. The petitioner there claimed that the statute 
was unconstitutional and void. A  demurrer by the State 
of Louisiana was sustained, and ultimately this Court 
affirmed the judgment of the Louisiana courts in holding 
that the statute did not violate the Thirteenth Amendment 
nor did it violate the Fourteenth Amendment. Mr. Justice 
Brown in his opinion for the majority of the Court pointed 
out that:

“ A statute which implies merely a legal distinc­
tion between the white and colored races—a distinc­
tion which is founded in the color of the two races, 
and which must always exist so long as white men 
are distinguished from the other race by color—has 
no tendency to destroy the legal equality of the two 
races, or reestablish a state of involuntary servi­
tude . . . ”  (163 U. S. 537, 543).

Mr. Justice Brown, in continuing, stated that the object 
of the Fourteenth Amendment was to enforce absolute 
equality before the law but:

“  . . . Laws permitting, and even requiring, their 
separation in places where they are liable to be 
brought into contact do not necessarily imply the in­
feriority of either race to the other, and have been 
generally, if not universally, recognized as within the 
competency of the state legislatures in the exercise 
of their police power. . . . ” 18 19

18163 U. S. 537, 543.
19 Id. at page 543.



32

It should be noted that this case was based solely on 
the pleadings, and that there was no evidence either before 
the lower courts or this Court on either the reasonableness 
of the racial distinctions or of the inequality resulting from 
segregation of Negro citizens. The plaintiff’s right to 
“ equality”  in fact was admitted by demurrer. The deci­
sion in the Plessy case appears to have been based upon the 
decision of Roberts v. Boston, 5 Cush. 198 (1849), a case 
decided before the Civil War and before the Fourteenth 
Amendment was adopted. In the Plessy case, the majority 
opinion cites and relies upon language in the decision in 
the Roberts case and added: “ It was held that the powers 
of the Committee extended to the establishment of separate 
schools for children of different ages, sexes and colors, 
and that they might also establish special schools for poor 
and neglected children, who have become too old to attend 
the primary school, and yet have not acquired the rudiments 
of learning, to enable them to enter the ordinary schools.”  20

Mr. Justice H arlan in his dissenting opinion pointed out 
that: 11

11 In respect of civil rights, common to all citizens, 
the Constitution of the United States does not, I 
think, permit any public authority to know the race 
of those entitled to be protected in the enjoyment of 
such rights. Every true man has pride of race, and 
under appropriate circumstances, when the rights of 
others, his equals before the law, are not to be af­
fected, it is his privilege to express such pride and 
to take such action based upon it as to him seems 
proper. But I deny that any legislative body or ju­
dicial tribunal may have regard to the race of citizens 
when the civil rights of those citizens are involved. 
Indeed such legislation as that here in question is 
inconsistent, not only with that equality of rights

20 Id . at pages 544-545.



33

which pertains to citizenship, national and state, but 
with the personal liberty enjoyed by every one within 
the United States”  (163 U. S. 537, 554-555).

and
“ There is no caste here. Our Constitution is 

color-blind, and neither knows nor tolerates classes 
among citizens. In respect of civil rights, all citizens 
are equal before the law. The humblest is the peer 
of the most powerful. The law regards man as man, 
and takes no account of his surroundings or of his 
color when his civil rights as guaranteed by the su­
preme law of the land are involved. It is therefore 
to be regretted that this high tribunal, the final ex­
positor of the fundamental law of the land, has 
reached the conclusion that it is competent for a state 
to regulate the enjoyment by citizens of their civil 
rights solely upon the basis of race”  (163 U. S. 537, 
559).

More recent decisions of the Supreme Court support Mr. 
Justice H arlan ’s conclusion.21 In re-affirming the invalidity 
of racial classification by governmental agencies, Mr. Chief 
Justice Stone speaking for the Court in the case of Ilira- 
bayashi v. United States stated: “ Distinctions between
citizens solely because of their ancestry are by their very 
nature odious to a free people whose institutions are founded 
upon the doctrine of equality. For that reason legislative 
classification or discrimination based on race alone has 
often been held to be a denial of equal protection.” 22

In the same case, Mr. Justice M urphy filed a concurring 
opinion in which he pointed out that racial distinctions 
based on color and ancestry “ are utterly inconsistent with 
our traditions and ideals. They are at variance with the 
principles for which wTe are now waging war.” 23

21 Hirabayashi v. United States, 320 U. S. 81.
22 id. at page 100.
23 Id. at page 110.



34

Mr. Justice M urphy in a concurring opinion in a case 
involving discrimination against Negro workers by a rail­
road brotherhood acting under a federal statute (Railway 
Labor Act) pointed out:

“ Suffice it to say, however, that this constitutional 
issue cannot be lightly dismissed. The cloak of 
racism surrounding the actions of the Brotherhood 
in refusing membership to Negroes and in entering 
into and enforcing agreements discriminating against 
them, all under the guise of Congressional authority, 
still remains. No statutory interpretation can erase 
this ugly example of economic cruelty against colored 
citizens of the United States. Nothing can destroy 
the fact that the accident of birth has been used as 
the basis to abuse individual rights by an organiza­
tion purporting to act in conformity with its Con­
gressional mandate. Any attempt to interpret the 
Act must take that fact into account and must realize 
that the constitutionality of the statute in this respect 
depends upon the answer given.

“ The Constitution voices its disapproval when­
ever economic discrimination is applied under au­
thority of law against any race, creed or color. A 
sound democracy cannot allow such discrimination to 
go unchallenged. Racism is far too virulent today to 
permit the slightest refusal, in the light of a Consti- 
tion that abhors it, to expose and condemn it where- 
ever it appears in the course of a statutory interpre­
tation. ’ ’ 24

The doctrine of “ separate but equal”  treatment recog­
nized in Plessy v. Ferguson was arrived at not by any study 
or analysis of facts but rather as a result of an ad hominem 
conclusion of “ equality”  by state courts. As a matter of 
fact, this Court has never passed directly upon the question 
of the validity or invalidity of state statutes requiring the

24 Steele v. L. N. R. R. Co., 323 U. S. 192, 209.



35

segregation of the races in public schools. The first case 
on this point in this Court is Cummings v. Richmond County 
Board of Education25 The Board of Education of Rich­
mond County, Georgia, had discontinued the only Negro 
high school but continued to maintain a high school for 
white pupils. Petitioner sought an injunction to restrain 
the board from using county funds for the maintenance of 
the white high school. The trial court granted an injunction 
which was reversed by the Georgia Supreme Court and af­
firmed by this Court. The opinion written by Mr. Justice 
H arlan expressly excluded from the issues involved any 
question as to the validity of separate schools. The opinion 
pointed out:

“ It was said at the argument that the vice in the 
common-school system of Georgia was the require­
ment that the white and colored children of the state 
be educated in separate schools. But we need not 
consider that question in this case. No such issue 
was made in the pleadings”  (175 U. S. 528, 543).

In the case Gong Lum v. Rice,26 the question was raised 
as to the right of a state to classify Chinese as colored and to 
force them to attend schools set aside for Negroes. In that 
case the Court assumed that the question of the right to 
segregate the races in its educational system had been de­
cided in favor of the states by previous Supreme Court 
decisions.

The next school case was the Gaines case which has been 
discussed above. In that case this Court without making an 
independent examination of the validity of the doctrine of 
“ separate but equal”  facilities stated: “ The state has 
sought to fulfill that obligation by furnishing equal facili­

25 175 U. S. 528.
26 275 U. S. 78.



36

ties in separate schools, a method the validity of which has 
been sustained by our decisions.”  This Court cited as au­
thority for this statement the decisions which have been 
analyzed above.

Segregation in public education helps to preserve and 
enforce a caste system which is based upon race and color. 
It is designed and intended to perpetuate the slave tradi­
tion sought to be destroyed by the Civil War and to prevent 
Negroes from attaining the equality guaranteed by the fed­
eral Constitution. Racial separation is the aim and motive 
of paramount importance— an end in itself. Equality, even 
if the term be limited to a comparison of physical facili­
ties, is and can never be achieved.

The only premise on which racial separation can be 
based is that the inferiority and the undesirability of the 
race set apart make its segregation mandatory in the inter­
est of the well-being of society as a whole. Hence the very 
act of segregation is a rejection of our constitutional axiom 
of racial equality of man.

The Supreme Court in Plessy v. Ferguson, as we have 
seen, without any facts before it upon which to make a 
valid judgment adopted the “ separate but equal”  doctrine. 
Subsequent cases have accepted this doctrine as a constitu­
tional axiom without examination. Hence what was in re­
ality a legal expedient of the Reconstruction Era has until 
now been accepted as a valid and proved constitutional 
theory.

C. Equality Under a Segregated System Is a Legal Fic­
tion and a Judicial Myth.

There is of course a dictionary difference between the 
terms segregation and discrimination. In actual practice, 
however, this difference disappears. Those states which



37

segregate by statute in the educational system have been 
primarily concerned with keeping the two races apart and 
have uniformly disregarded even their own interpretation 
of their requirements under the Fourteenth Amendment to 
maintain the separate facilities on an equal basis.

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

Racial segregation in education originated as a device to 
“ keep the Negro in his place” , i. e., in a constantly inferior 
position. The continuance of segregation has been synony­
mous with unfair discrimination. The perpetuation of the 
principle of segregation, even under the euphemistic theory 
of “ separate but equal” , has been tantamount to the perpet­
uation of discriminatory practices. The terms “ separate”  
and “ equal”  can not be used conjunctively in a situation 
of this kind; there can he no separate equality.

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

This is decidedly not the case when Negroes are seg­
regated in separate schools. Negroes are aggrieved; they 
are discriminated against; they are relegated to an inferior 
position because the entire device of educational segregation 
has been used historically and is being used at present to



38

deny equality of educational opportunity to Negroes. This 
is clearly demonstrated by the statistical evidence which 
follows.

The taxpayers’ dollar for public education in the 17 
states and the District of Columbia which practice com­
pulsory racial segregation was so appropriated as to de­
prive the Negro schools of an equitable share of federal, 
state, county and municipal funds. The average expense 
per white pupil in nine Southern states reporting to the 
U. S. Office of Education in 1939-1940 was almost 212% 
greater than the average expense per Negro pupil.27 Only 
$18.82 was spent per Negro pupil, while the same average 
per white pupil was $58.69.28

Proportionate allocation of tax monies is only one cri­
terion of equal citizenship rights, although an important 
one. By every other index of the quality and quantity of 
educational facilities, the record of those states where seg­
regation is a part of public educational policy clearly demon­
strates the inequities and second class citizenship such a 
policy creates. For example, these states in 1939-1940 gave 
whites an average of 171 days of schooling per school term. 
Negroes received an average of only 156 days.29 The aver­
age for a white teacher was $1,046 a year. The average 
Negro teacher’s salary was only $601.30

The experience of the Selective Service administration 
during the war provides evidence that the educational in­
equities created by a policy of segregation not only deprive

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

98 Ibid., Table 8.
29 Biennial Surveys of Education in the United States. Statistics 

of State School Systems, 1939-40 and 1941-42 (1944), p. 36.
30 Blose and Caliver, op. cit., supra note 9, Part 1, p. 6, Table 7.



39

the individual Negro citizens of the skills necessary to a 
civilized existence and the Negro community of the leader­
ship and professional services it so urgently needs, but also 
deprive the state and nation of the full potential embodied 
in the intellectual and physical resources of its Negro 
citizens. In the most critical period of June-July 1943, when 
the nation was desperately short of manpower, 34.5% of 
the rejections of Negroes from the armed forces were for 
educational deficiencies. Only 8% of the white selectees 
rejected for military service failed to meet the educational 
standards measured by the Selective Service tests.31 32

Lest there be any doubt that this generalization applies 
to Oklahoma as well, let us look at the same data for the 
same period with respect to this state. AVe find that 16.1% 
of the Negro rejections were for educational deficiency, 
while only 3% of the white rejections were for this reason.82

This demonstration of the effects of inequitable segrega­
tion in education dramatizes one of the key issues which 
this Court must decide. Failure to provide Negroes with 
equal educational facilities has resulted in deprivations to 
the state and nation as well as to the Negro population. 
The Constitution establishes a set of principles to guide 
human conduct to higher levels.33 If the courts reject the 
theory of accepting the lowest common denominator of 
behavior because this standard is so blatantly detrimental 
to the individual citizen, to the state, and to the nation as 
a whole—then they will be exercising the power which the 
Constitution has vested in them for the protection of the 
basic values of our society.

31 The Black and White of Rejections for Military Service. Mont­
gomery, Ala., American Teachers Association (1944), p. 5.

32 Ibid.
33 Higher Education for American Democracy, A Report of the 

President’s Commission on Higher Education, Vol. I, 1947, p. 34. 
Government Printing Office.



40

2. On the Professional School Level the Inequities 
Are Even More Glaring.

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

In Oklahoma, the results of the legal as well as the ex­
tra-legal policies of educational discrimination have de­
prived the Negro population of professional services in the 
fields of medicine, dentistry and law. The extent of this 
deprivation can best be judged by the following data, in 
which the figures represent one lawyer, doctor and dentist, 
respectively, to the following number of white and Negro 
population:34

Profession White Negro
Law __________________ 643 6,754
Medicine ____________  976 2,165
Dentistry___...________  2,931 8,887

That this critical situation is not peculiar to Oklahoma 
alone but is an inevitable result of the policy of racial 
segregation and discrimination in education is demonstrated 
by an analysis made by Dr. Charles H. Thompson.35 He 
states that:

“ In 1940 there were 160,845 white and 3,524 Negro 
physicians and surgeons in the United States. In

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

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



41

proportion to population these represented one physi­
cian to the following number of the white and Negro 
population, respectively:

Section White Negro
U. S___ _______ ______  735 3,651
North _______________  695 1,800
South _______________  859 5,300
W est_____ ___ 717 2,000
Mississippi ....  .______  4,294 20,000

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

Section White Negro
U. S----------- l__________  1,752 8,800*
North _______________  1,555 3,900*
South _______________  2,790 14,000*
West _________________ 1,475 3,900*
Miss. __________________  14,190 37,000*

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

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

Section White Negro
u. s_______ _____  670 12,230
North __________ _____  649 4,000
South _______ ..._____  711 30,000
W est___________ _____  699 4,000
M iss.___________ _____  4,234 358,000

* To the nearest hundred or thousand.



42

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

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

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

The record of this policy of educational segregation and 
denial of professional education to Negroes is clear. In the 
17 states and the District of Columbia in 1939-1940 the fol­
lowing number of states made provisions for the public 
professional education of Negro and white students:36

38 Based on data in National Survey of Higher Education for 
Negroes, Vol. II, p. 15. U. S. Office of Education, 1942.



43

Profession White Negro

Medicine _______ _____ 15 0
Dentistry_______ _____ 4 0
L aw .... _________ _____ 16 1
Engineering _________ 17 0
Social Service________ 9 0
Library science ..._____ 13 1
Pharmacy _____ _____ 14 0

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

Other sections of the country, too, practice discrimina­
tion against Negroes in professional schools by means of 
“ quotas”  and other devices.37 But only in the South is legal

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

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

“ Such racial arithmetic hardly accords with our vaunted principles 
of democratic equality. In effect it establishes categories of citizen­
ship. It discriminates against tens of millions of citizens by denying 
their sons and daughters a free and equal choice of profession. If a 
ratio must be imposed on the basis of race, why not on the pigmen­
tation? Forcing a potentially great surgeon to take up some other 
trade makes sense only on the voodoo level of murky prejudice. It 
not only deprives the citizen of his legal and human rights but, no 
less important, it deprives the country of his potentially valuable ser­
vices.”— from “ Religious Prejudices in Colleges,”  by Dan W . Dodson. 
The American Mercury (July 1946), p. 5. See also: “ Higher Edu­
cation for American Democracy” , A Report of the President’s Com­
mission on Higher Education, U. S. Government Printing Office, 
December, 1947, page 35. “ This practice is a violation of a major 
American principle and is contributing to the growing tension in one 
of the crucial areas of our democracy.”



44

discrimination practiced and it is thus in the South that 
the Negro population suffers the greatest deprivation of 
professional services.

The record is quite clear, and the implications of the 
above data are obvious. There is another implication, how­
ever, which is not as obvious but is of almost equal impor­
tance in the long-range development of the Negro people. 
From the ranks of the educated professionals come the 
leaders of a minority people. In the course of their daily 
duties they transmit their skills and knowledge to the people 
they serve. They create by their daily activities a better, 
more enlightened citizenship because they transmit knowl­
edge about health, personal care, social relationships and 
respect for and confidence in the law.

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



45

D. There is No Rational Justification For Segregation in 
Professional Education and Discrimination Is a Neces­
sary Consequence of Any Separation of Professional 
Students On the Basis of Color.

1. The professional skills developed through graduate 
training are among the most important elements of our 
society. Their importance is so great as to be almost self- 
evident. They are the end results, the products of educa­
tion, but, at the same time, they do not constitute the full 
purpose of education.

“ It is a commonplace of the democratic faith 
that education is indispensable to the maintenance 
and growth of freedom of thought, faith, enterprise, 
and association. Thus the social role of education 
in a democratic society is at once to insure equal 
liberty and equal opportunity to differing individuals 
and groups, and to enable the citizens to understand, 
appraise, and redirect forces, men, and events as 
these tend to strengthen or to weaken their liber­
ties.” 38

It clearly follows then, that segregation is an abortive 
factor in the full realization of the objectives of education. 
First, it prevents both the Negro and white student from 
obtaining a full knowledge of the group from which he is 
separated, thereby infringing upon the natural rights of an 
enlightened citizen. Second, a feeling of distrust for the 
minority group is fostered in the community at large, a 
psychological atmosphere which is not favorable to the 
acquisition of an education or to the discharge of the duties 
of a citizen in redirecting “ forces, men and events” . Lastly, 
one of the effects of segregation in education with respect

38 “ Higher Education for American Democracy” , A Report of the 
President’s Commission on Higher Education, U. S. Government 
Printing Office, December 1947, p. 5.



46

to the general community is that it accentuates imagined 
differences between Negroes and whites.

This false assumption of differences is given an appear­
ance of reality by the formal act of physical separation. 
Furthermore, as the segregation is against the will of the 
segregated, it produces a very favorable situation for the 
increase of bad feeling, and even conflict, rather than the 
reverse.89

It is clear, then, that in seeking a form of education free 
from any racial restrictions, one wants not only the benefits 
and skills that that education can yield him, but, primarily, 
he desires to live and function as an enlightened citizen in 
a representative democracy.

2. Qualified educators, social scientists, and other ex­
perts have expressed their realization of the fact that 
“ separate”  is irreconcilable with “ equality” .39 40 There can 
be no separate equality since the very fact of segregation 
establishes a feeling of humiliation and deprivation to the 
group considered to be inferior.41

The recently published report of the President’s Com­
mittee on Civil Rights states:

“ No argument or rationalization can alter this 
basic fact: a law which forbids a group of American 
citizens to associate with other citizens in the ordi­
nary course of daily living creates inequality by im­
posing a caste status on the minority group.” 42

39 Gunnar Myrdal, An American Dilemma, New York, 1944, Vol. 
I, page 625: “ But they are isolated from the main body of whites, 
and mutual ignorance helps reenforce segregative attitudes and other 
forms of race prejudice” .

40 Gunnar Myrdal, op cit., page 580.
41 Carey McWilliams, “ Race Discrimination and the Law” , Science 

and Society, Volume IX , Number 1, 1945.
42 “ To Secure These Rights” , The Report of the President’s Com­

mittee on Civil Rights, U. S. Government Printing Office, 1947, p. 82.



47

The sociological and political significance of the practice 
of segregation is found not only in the deprivations experi­
enced by the minority group, but by society at large. In one 
of the most exhaustive studies ever conducted on the sub­
ject of segregation, the noted sociologist Gunnar Myrdal has 
stated:

“ Segregation and discrimination have had ma­
terial and moral effects on whites, too. Booker T. 
Washington’s famous remark that the white man 
could not hold the Negro in the gutter without getting 
in there himself, has been corroborated by many 
white southern and northern observers. Through­
out this book, we have been forced to notice the low 
economic, political, legal and moral standards of 
Southern whites—kept low7 because of discrimination 
against Negroes and because of obsession with the 
Negro problem. Even the ambition of Southern 
wfiites is stifled partly because, without rising far, it 
is so easy to remain ‘ superior’ to the held-dowm 
Negroes.” 43

There are many other authoritative studies which bear out 
Mr. Myrdal’s observations.44

In addition to the psychological atmosphere of distrust 
and the practical inequities which result under a segregated 
system, the citizens of both the majority and minority 
groups are deprived of that inter-change of ideas and atti­
tudes which is so necessary to a full education.

3. No one questions the kind of separation which the 
community imposes in the interest of public safety, con­
venience or welfare. There is ample justification for differ­
ences in the treatment of the old and the young, the healthy

43 Gunnar Myrdal, An American Dilemma, New York, 1944, Vol. 
I, page 644.

44 H. Cantril, Psychology of Social Movements, 1941, pages 78-122; 
Gene Weltfish, “ Causes of Group Antagonism” , Journal of Social 
Issues, Vol. 1.



48

and the sick, the criminal and the law-abiding. In each of 
these cases the act of separation is justified and is moti­
vated by a desire to protect society at large, and to promote 
the interest of both groups.

There is, however, no rational basis, no factual justifi­
cation for segregation in education on the grounds of race 
or color. This type of segregation is often rationalized on 
the ground that “ Negroes have an inferior mental capacity 
to whites.”  Yet this premise is completely invalid and no 
act of segregation based upon it can be upheld as reason­
able.45 * Scientific studies have been conducted in which rep­
resentative samples of both groups, Negro and white, have 
been placed in nearly identical situations with identical 
tasks to perform. In a study by an eminent sociologist, it 
is stated:

“ The general conclusion can be only that the case 
for psychological race differences has never been 
proved. . . . The general conclusion of this book is 
that there is no scientific proof of racial differences 
in mentality. . . . There is no reason, therefore, to 
treat two people differently because they differ in 
their physical type. There is no justification for de­
nying a Negro a job or an education because he is a 
Negro. No one has been able to demonstrate that 
ability is correlated with skin color or head shape 
or any of the anatomical characteristics used to 
classify races.” 411

45 The Black and White of Rejections for Military Service, Ameri­
can Teachers Association, August, 1944, page 29.

Otto Klineberg, Negro Intelligence and Selective Migration, New 
York, 1935.

J. Peterson & L. H. Lanier, “ Studies in the Comparative Abilities 
of Whites and Negroes” , Mental Measurement Monograph, 1929.

W . W . Clark, “ Los Angeles Negro Children” , Educational Re­
search Bulletin, Los Angeles, 1923.

4R Otto Klineberg, Race Differences 343 (1935).



49

Moreover, it has been demonstrated, that in cases where 
no segregation exists, or where it has ceased to exist, the 
results have never been disastrous but often favorable. 
Lloyd W. Warner in his study of New Haven Negroes says:

“  . . . children in New Haven are not taught color 
consciousness in the schools and develop it only 
slowly from outside influences. There is no discrimi­
nation in the New Haven public-school system. . . . 
There are colored children in four out of every seven 
schools in the city, and in none are they segregated 
by class, seat, or section. Reports indicate, also, that 
the white teachers make no distinction in their treat­
ment of the two races. . . .

“ In many early grades, white and black children 
romp and learn together. Negroes compete without 
restraint or embarrassment . . . and, if proficient, are 
cheered and honored. They debate, sing, and act in 
dramatics, generally without discrimination.”  
* # * * # » * * *

“ There is no feeling of difference among fellow 
teachers, white or black. They entertain each other 
socially and make friends, eat, banquet, talk and play 
cards together. They are united against discrimina­
tion when it shows itself. ’ ’ 47

Since all available evidence controverts the theory that 
Negroes have an inferior mental capacity to whites, and 
moreover, since the ttvo groups work well together and to 
their mutual advantage, it must be concluded that any claim 
of inferiority is motivated by a desire to perpetuate segre­
gation per se.48

47 Lloyd W . Warner, New Haven Negroes, New Haven, 1940, pp. 
277-279.

48 D. O. McGovney, “ Racial Residential Segregation by State Court 
Enforcement of Restrictive Agreements, Covenants or Conditions in 
Deeds is Unconstitutional” (1945), 33 Cal. L. Rev. 5, 27 (note 94: 
“ When a dominant race, whether white or Negro, demands separa­
tion, it is fallacious to say . . . that the intention and effect is not 
to impose a ‘badge of inferiority’ on the other.” )



"V

4. It may be that the pattern of segregation which has 
existed in the South for more than fifty years cannot be 
abolished instantaneously. But although the term “ grad­
ual”  may be used adjectively in relation to the overall pat­
tern, it should not be used as a rationalization for inaction 
in this case. The Report of the President’s Commission on 
Higher Education, published in December, 1947, advocates 
as its sixth step toward equalizing educational opportuni­
ties the immediate abolition of segregation, in the following 
words:

50

“ The time has come to make public education at 
all levels equally accessible to all, without regard to 
race, creed, sex or national origin.

“ I f education is to make the attainment of a more 
perfect democracy one of its major goals, it is im­
perative that it extend its benefits to all on equal 
terms. It must renounce the practices of discrimi­
nation and segregation in educational institutions.as 
contrary to the spirit of democracy.” 49

Only a few months earlier, the Report of the President’s 
Commission on Civil Rights had recommended:

“ The elimination of segregation, based on race, 
color, creed, or national origin, from American life.

“ The separate but equal doctrine has failed in 
three important respects. First, it is inconsistent 
with the fundamental equalitarianism of the Ameri­
can way of life in that it marks groups with the brand 
of inferior status. Secondly, where it has been fol­
lowed, the results have been separate and unequal 
facilities for minority peoples. Finally, it has kept 
people apart despite incontrovertible evidence that 
an environment favorable to civil rights is fostered 
whenever groups are permitted to live and work to­

49 “ Higher Education for American Democracy” , A Report of the 
President’s Commission on Higher Education, U. S. Government 
Printing Office, Washington, December, 1947, p. 38.



51

gether. There is no adequate defense of segrega­
tion.” 50

All of the studies referred to herein demonstrate that 
segregation inevitably results in inequality and injustice. 
Thus, an objective examination of the facts furnishes the 
basis for a new ruling by this Court—a new ruling which 
will be evolutionary rather than revolutionary.

Ill
The Doctrine of “ Separate But Equal” Facilities Should

Not Be Applied to This Case.

The examination of the “ separate but equal”  doctrine 
reveals that it is at best a bare constitutional hypothesis 
based upon a fallacious evaluation of the purpose and 
meaning inherent in any policy or theory of enforced racial 
separation. This Court should not recognize such a doctrine 
in the absence of clear and unmistakable evidence that such 
enforced separation affords the equality guaranteed by the 
Fourteenth Amendment, which “ equality”  this Court has, 
while passing upon the validity of segregation statutes, 
assumed actually to exist.

The asserted right of the State of Oklahoma to enforce 
segregation of the races in public schools even to the extent 
of excluding petitioner from the only law school must be 
weighed against the national interests as set forth in the 
Constitution.51 This Court has re-stated our national policy

50 “ To Secure These Rights’’, The Report of the President’s Com­
mittee on Civil Rights, U. S. Government Printing Office, 1947,
p. 166.

51 Cf.: Morgan v. Virginia, 328 U. S. 373; Marsh v. Alabama, 326 
U. S. 501; Cantwell v. Connecticut, 310 U. S. 296; Railway Mail 
Association v. Cor si, 326 U. S. 88.



52

to be opposed to racial classifications because such classifi­
cations are irrational and unreasonable criteria “ odious to 
a free people whose institutions are founded upon the doc­
trine of equality” .62

The flagrant discrimination against the petitioner in this 
case is directly in the teeth of the Fourteenth Amendment 
and was made with full knowledge of the decision of this 
Court in the Gaines case. The respondents only defense is 
a reliance upon certain language in this Court’s opinion. 
Petitioner has already lost more than a year of legal train­
ing which she would have received had she not been a Negro. 
This petitioner’s rights can only be protected by affirmative 
action of this court in recognizing her right to be admitted 
to the Law School of the University of Oklahoma without 
qualifying such relief by apparently recognizing the validity 
of the doctrine of “ separate but equal”  facilities in this 
case.

Conclusion

AVherefore, it is respectfully submitted that the judg­
ment of the Supreme Court of Oklahoma should be reversed.

Submitted by,

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

Counsel for Petitioner.
R obert L. Carter,
E dward R. D udley,
M arian W yn n  Perry,
F rank D. Reeves,
F ranklin H. W illiams,

Of Counsel. 52

52 See Hirabayashi v. United States, 320 U. S. 81, 100.