Clinton v. Jeffers Jurisdictional Statement

    IN THE

iatpmtu' (Emirt of tho States
October Term, 1955

No.

THE BOARD OF CONTROL, et al
Petitioner

v.

THE STATE OF FLORIDA, ez rel 
VIRGIL D. HAWKINS,

Respondent

MOTION FOR LEAVE TO FILE AND PETITION FOR 
REHEARING OF ORDER GRANTING RESPOND­
EN T’S PETITION FOR W RIT OF CERTIORARI TO 
THE SUPREME COURT OF FLORIDA

RICHARD W. ERVIN 
Attorney General of the 

State of Florida 
State Capitol Building 
Tallahassee, Florida

RALPH E. ODUM 
Assistant Attorney General 
State of Florida

JOHN J. BLAIR
Special Assistant Attorney General 
State of Florida



IN THE

&uprmp Court of thr llmtvb States
October Term, 1955

No.

T he  B oard op Control, et al
Petitioner

v.

T he  S tate op F lorida, ex rel V irgil D . H a w k in s ,
Respondent

MOTION FOR LEAVE TO FILE PETITION 
FOR REHEARING

The Attorney General of the State of Florida respect­
fully moves for leave to file the annexed petition for re­
hearing of the order of this Court denying respondent’s 
petition for certiorari and granting respondent’s petition 
for writ of certiorari with an order for respondent’s prompt 
admission to the College of Law at the University of Flor­
ida, such order bearing the date of March 12, 1956.

Rehearing is sought at this time because, as is pointed 
out more fully in the annexed petition, the Court was 
not properly apprized of the reasoning involved in the 
cases cited in support of its order or of the import of 
said cases, nor has the Court been informed as to the 
grave problems of public interest involved in the admis­
sion of negro students to the University of Florida College 
of Law at this time and the serious consequences affecting 
the administration and operation of Florida’s institutions 
of higher learning as a result of the order of the Court.



IN THE

f>uprm? (tart of thr Initefc States
October Term, 1955

No.

T he  B oaed op C ontrol, et al
Petitioner

v.

T he  S tate of F lorida, exrel V irgil D. H aw k in s ,
Respondent

PETITION FOE REHEARING OF ORDER GRANTING 
RESPONDENT’S PETITION FOR WRIT OF CERTI­
ORARI TO THE SUPREME COURT OF FLORIDA

The Attorney General of the State of Florida prays 
that this Court grant rehearing of its order of March 12, 
1956, which denied respondent’s petition for certiorari 
hut granted respondent’s petition for writ of certiorari 
and required prompt admission of respondent to the 
College of Law of the University of Florida. The At­
torney General further requests that this Court make its 
order recognizing authority in the Florida Supreme Court 
to allow the petitioner, the Board of Control of the State 
of Florida, the same latitude in dealing with the grave 
problems presented the State of Florida, on the college grad­
uate school level as is permitted on the elementary and 
secondary school levels, under the Court’s second or imple­
mentation decision of May 31, 1955, in Brown v. Board of 
Education of Topeka, 347 U. S. 483, 98 L, Ed. 873, 74 S. Ct. 
686.



2

Reasons for Rehearing and Order Permitting Ex­
ercise of Judicial Discretion and Reasonable Time for
Compliance.

First This Court in denying to the highest appellate 
court of the State of Florida the judicial authority to con­
sider and apply equitable principles in cases involving the 
admission of negro students to graduate professional 
schools, regardless of local conditions, the public welfare, 
or any other untoward or aggravating circumstance, has 
departed from judicial principles long established and rec­
ognized by this Court. This is particularly true in this 
instance when the Court forbids, at the very threshold of 
the consideration of the problems, the receiving and con­
sideration of evidence which may be pertinent to the ex­
istence of problems of administration, public safety, and 
welfare which traditionally and historically are consid­
ered by a court of equity. We respectfully submit that 
equity is a concept of justice which has always been rec­
ognized by this Court and which has been in existence 
longer than the United States Supreme Court itself; that 
it is a fundamental and inherent right in the American 
system of jurisprudence which should not be abrogated 
by a decision of this Court, that it is a right which can only 
be exercised or denied in accord with the specific facts in­
volved in each particular case and cannot be abridged as 
a general rule of law or conclusion of fact prior to a con­
sideration of pertinent evidence as to the facts or the 
granting of an opportunity to present such evidence when 
it is sought. Since the original decision of this Court in 
Brown v. Board of Education of Topeka, 347 U. S. 483, 
entered May 17, 1954, the State of Florida has followed a 
sound and stable course in dealing with problems arising 
in the public schools and universities of Florida as a result 
of said decision.



3

In considering the petition of respondent in this case 
for admission to the University of Florida Law School, the 
Florida Supreme Court felt it necessary to a proper con­
sideration of the issue to adopt equitable principles in the 
application of the decree of this Court. The Florida court 
took into consideration factors known to it at the time, 
and exercising its judicial discretion, ruled that a reason­
able time should be allowed for the taking of testimony 
to disclose facts which might indicate serious problems 
which would result if an order of immediate admission 
was entered. A court of equity is never active against 
conscience or public convenience. Bowman v. Wathen, 1 
How. 189, 11 L. Ed. 97. This Court has always felt it 
proper to apply equitable principles against the enforce­
ment of legal doctrines when it was disclosed that public 
interest might be affected adversely by the enforcement of 
a legal decree. Courts of equity may appropriately with­
hold their aid when the plaintiff is using the right asserted 
in a manner contrary to the public interest. Morton Salt 
Co. v. Suppiger Co., 314 U. S. 488, 62 S. Ct. 402, 86 L. Ed. 
363.

The Supreme Court of Florida followed these long ad­
hered to principles in order to avoid the emotional furor 
and disorder which commonly result in the agitation of 
racial antagonists, as has been demonstrated recently at 
the University of Alabama in a case involving the abrupt 
admission of a negro student. The extent to which a court 
of equity may grant or withhold its aid and the manner 
of molding its remedies may be affected by the public in­
terest involved. U. S. v. Morgan, 307 U. S. 183, 59 S. Ct. 
795, 83 L, Ed. 1211.

The State of Florida has been more successful than any 
other southern state in maintaining an emotional equilib­



4

rium during its attempts to solve the dilemma created by 
this Court’s ruling that segregation in public schools can­
not be required by law. This is attributable to the fact 
that the Florida Supreme Court and school officials have 
consistently followed long established equitable principles 
in dealing with this problem. Traditionally, equity has been 
characterized by practical flexibility in shaping its rem­
edies and by the facility for adjusting and recognizing 
public and private needs. Brown v. Board of Education 
of Topeka, 349 U. S. 294, 75 S. Ct. 753, 99 L, Ed. 1083. It 
is the duty of a court of equity to strike a proper balance 
between the needs of the plaintiff and the consequence of 
giving the desired relief. Eccles v. Peoples Bank, 333 U. S. 
426, 68 S. Ct. 641, 92 L. Ed. 784.

Their established forms being flexible, courts of equity 
may adapt proceedings and remedies to the circumstances 
of cases and may formulate them to safeguard, adjust and 
enforce the rights of all parties. Alexander v. Hillman, 296 
U. S. 222, 56 S. Ct. 204, 80 L, Ed. 192.

The Florida Supreme Court in this case has determined 
that the need for equity is as urgent on the college grad­
uate level as on the elementary and secondary school lev­
els. Having so decided, the Florida court requested that 
information be obtained as to the factual circumstances 
involved at the University of Florida to assist it in making 
a decision as to whether or not Hawkins could be admitted 
forthwith without a serious disruption of the University, 
or whether there was a genuine need for the application 
of equitable principles in coping with the problems in­
volved. The Florida Supreme Court properly concluded 
that since equity jurisdiction was part and parcel in the 
implementation of the U. S. Supreme Court’s segregation 
decision, it should not be denied application to afford com­



5

plete relief as the justice and equity of the instant case 
might require. Hepburn v. Dunlop, 1 Wheat 179, 4 L. Ed. 
65. A court of equity which has jurisdiction of a question 
may proceed to its final and complete decision. Stephens 
v. M ’Cargo, 9 Wheat 502, 6 L. Ed. 145. The whole contro­
versy will be settled by a court of equity where it has jur­
isdiction of a part involving the problems upon which the 
whole depends. Massie v. Watts, 6 Crunch 148, 3 L. Ed. 
181. This Court has consistently permitted time in imple­
mentation of decrees involving long established public pol­
icy and affecting public interest. Recognizing the need for 
adjustment, the Court has granted time in dissolution of 
corporations in anti-trust cases. United States v. American 
Tobacco Co., 221 U. S. 106, 31 S. Ct. 632, 55 L. Ed. 663; 
Standard Oil Co. v. United States, 221 U. S. 1, 31 S. Ct. 
502, 55 L. Ed. 619. In the area, of nuisance litigation, this 
Court has recognized the need for a period of gradual tran­
sition. New Jersey v. New York, 283 U. S. 473, 51 S. Ct. 
519, 75 L. Ed. 1176; Georgia v. Tennessee Copper Co., 206 
U. S. 230, 27 S. Ct. 618, 51 L. Ed. 1038; People of the State 
of New York v. State of New Jersey and Passaic Valley 
Sewerage Commissioners, 256 U. S. 296, 41 S. Ct. 492, 65 
L. Ed. 937.

Second This Court in this case has in effect denied the 
application of equitable principles on the assumption that 
no problems exist which would justify the ameliorating in­
fluence of equity in seeking compliance. This Court in its 
order makes the statement that “ . . . there is no reason for 
delay.”  This statement appears to be the sole basis and 
justification for the Court’s order. The statement is in 
error and candidly is ipse dixit unsupported by any evi­
dence before the Court in this or any other case under its 
jurisdiction. This Court has reached a premature legal 
conclusion as to matters of fact, since no facts have been



6

considered by this Court and the Court has denied the 
petitioner an opportunity to present evidence pertaining to 
and substantiating such facts, and more to be deplored, 
has abruptly denied the Florida Supreme Court the right 
to proceed with its orderly review of the case in a thor­
ough, careful manner in the light of equity principles 
essential to the public interest involved.

Third The prior decisions cited by this Court in sup­
port of its order are irrelevant to the sole issue involved 
in the present case at this time, to wit: Do factual prob­
lems exist which must be considered by courts of first 
instance in making proper determinations of pertinent ques­
tions relating to the feasibility or practicability of now 
allowing admission of a negro student and others similarly 
situated to graduate schools of the University of Florida!

As a predicate for its decree, the Court cited its ruling 
in Sweatt v. Painter, 339 U. 8. 629; Sipuel v. Board of 
Regents of the University of Oklahoma, 332 U. S. 631; and 
McLaurin v. Oklahoma State Regents for Higher Educa­
tion, 339 U. S. 637. These cases, however, were decided 
under the “ separate but equal doctrine.”  In all of these 
cases the question presented to the Court and decided by 
the Court was whether or not petitioner had a legal right 
to enter the university in question because of unequal fa­
cilities or benefits. That question is not involved in this 
case. This case involves a situation where segregation per 
se has been held unconstitutional and now presents the 
question whether equitable principles will be applied in 
balancing Hawkins’ individual rights, and those of others 
similarly situated, against the public interest and welfare. 
The question relating to the application of equitable prin­
ciples in permitting a reasonable time for delay by a lower 
court was not advanced or considered in the earlier cases



7

which this Court cited in its order.

In other words, in the earlier cases cited, the Court was 
concerned with the question of the petitioner’s right to 
admission because of unequal facilities or benefits. In this 
case, the Court is now concerned only with the question as 
to when respondent and those similarly situated should be 
admitted.

Fourth Petitioner is prepared to submit competent and 
conclusive evidence, if permitted by the Court, to show 
that valid, sufficient and urgent reasons do exist in Florida 
for delay in admitting negroes to the graduate professional 
schools; that if such evidence is ignored the public safety 
in Florida will be endangered and the administration and 
operation of institutions of higher learning in Florida will 
be disrupted. Pursuant to an order of the Florida Supreme 
Court in this case, a commissioner of the court was desig­
nated to take testimony as to the factual conditions at 
the University of Florida which might be pertinent to the 
problems here considered. A survey of the University of 
Florida Law College and of the state university system as 
a whole was undertaken by the State Board of Control in 
order to comply with the Florida Supreme Court’s order. 
Although this survey is now in the process of being made 
and has not been completed, certain preliminary informa­
tion has already been obtained which is at variance with 
the statement of this Court in its order to the effect that 
“ there are no reasons for delay.”  For example, the sur­
vey demonstrates an acute shortage of physical facilities 
available for students already enrolled at the University 
of Florida and at all state universities. It demonstrates an 
annual growth of student enrollment which is so larg’e 
that the present multi - million dollar construction pro­
gram now in progress on all of the university campuses



8

may be insufficient to meet the minimum requirements of 
students even in the absence of an abrupt shift in college 
populations resulting from integration. These factors are 
further complicated by the attitudes of state university 
students and their parents. For example, all students now 
enrolled at the University of Florida were requested to 
fill out a questionnaire designed to ascertain as accurately 
as possible the future actions of students in the event that 
integration takes place immediately at the University. 21.04 
per cent of the questionnaires returned stated that the 
students would not be willing to admit negroes to the Uni­
versity of Florida under any circumstances. 14.01 per cent 
stated that they wanted to delay admission of negroes to 
the white universities as long as legally possible, and 41.45 
per cent stated that they thought negroes should not be 
admitted until after a reasonable period of preparation for 
integration. Only 22.39 per cent indicated that they were 
willing to admit negroes to the white universities imme­
diately.

Questionnaires were mailed to all students at the Uni­
versity of Florida and 75.31 per cent of the students re­
turned their questionnaires, so it is felt that this is a rep­
resentative expression of student body opinion and rea­
sonably accurate in attempting to predict or foresee prob­
able future actions of the student body.

Questionnaires were also sent to the parents of all stu­
dents now enrolled at the University of Florida and 46.8 
per cent have been returned at this time. Only 9.04 per 
cent of the parents indicated a willingness to accept negro 
students at the white universities immediately. 24.10 per 
cent stated that they believed that integration should not 
take place until after a reasonable period of preparation. 
23.98 per cent stated that they thought that integration



9

should be delayed as long as legally possible. 41.62 per 
cent, which is by far the largest group, stated that inte­
gration should not take place under any circumstances. A 
factor which is of even more significance in administrative 
planning for the university is the indication that large 
numbers of parents would cause their sons or daughters 
to leave the university if integration takes place at this 
time. 32.29 per cent of the parents indicated that they 
would transfer their sons or daughters to another institu­
tion which does not admit negroes if integration is required 
at the University of Florida at this time.

It is submitted that these facts indicate a strong prob­
ability of a serious disruption at the University of Florida 
if respondent is admitted at this time. Although the sur­
vey has not as yet been completed, it is being made as 
rapidly as possible and the information which it will dis­
close will be available to the courts by the May 31, 1956 
deadline set by the Florida Supreme Court. This study 
which is being made will in no way affect the time of 
Hawkins' admission to the University of Florida (since un­
der the regulations of the University applicable to all stu­
dents, he could not enter until next September), unless of 
course, the information obtained reveals that such serious 
problems of readjustment do actually exist as to require 
the courts in the public interest to permit still further 
delay. A major problem of readjustment to an inte­
grated university system, which is now being diligently 
studied and solutions sought as rapidly as possible, has to 
do with the effect of an order of immediate integration in 
the University of Florida upon the Florida university for 
negroes (Florida Agricultural and Mechanical University). 
As we have demonstrated to the Court in our amicus curiae 
brief filed in the Brown case, there is a significant gap in



10

achievement levels between white and colored students in 
Florida, Only five per cent of the negro high school stu­
dents are in the upper 50 percentile of the white students. 
This factor, from a realistic standpoint, requires, lower ad­
mission standards at the State University for negroes than 
those in existence at the white universities. This has been 
recognized and accepted under a segregated public school 
system which has prevailed in Florida up until this time 
as a necessary expedient in dealing with the problem 
of trying to provide the best possible college education for 
both races. If, however, the state universities are inte­
grated at either the graduate or undergraduate level at 
this time, it will of course entail a revision of this policy 
and the State Board of Control will be forced to place all 
state universities on the same basis from the standpoint 
of admission requirements. Such an abrupt change could 
only result in the elimination of at least 90 per cent of 
negro students who wish to attend a state supported in­
stitution of higher learning in Florida,

It is submitted that an abrupt change of this kind would 
be inequitable and grossly unfair to the negro population 
in Florida, and that rather than an abrupt, drastic change 
in admission requirements forced by the Court at Florida 
Agricultural and Mechanical University at this time, it 
would be more equitable and in the public interest to per­
mit the negro university to continue to improve its stand­
ards in an orderly and realistic manner. We submit that 
it would be grossly unfair to deprive 90 per cent of the 
negroes in Florida of the opportunity for an education in 
a state university simply to compel the admission of one 
individual into the University of Florida.

Fifth, It is respectfully submitted that factual condi­
tions in Florida cannot be accurately measured by the



11

experience of other states in admitting negroes to white 
universities. As has been recognized by this Court in the 
Brown case, there are significant regional differences and 
variations throughout the south on the problem of inte­
gration and these local conditions should be given con­
sideration. Although integration has taken place at the 
college graduate level in some state universities without 
creating serious problems of administration, it is equally 
true that the attempt to force an immediate integration 
at the University of Alabama did create serious problems. 
It would be unrealistic and dangerous to assume in ad­
vance as the Court has done in its order of March 12, 1956, 
in this case, that Florida will fall in either category. There 
are many significant and real differences between Florida, 
Oklahoma and Alabama or any other state in which this 
problem has previously been considered by the Court. These 
distinctions involve the social structure, the economics and 
attitudes of the people in the several states and cannot in 
good conscience be ignored. They must not be ignored by 
this court if the public interest is to be considered, simply 
on the assumption that “ there are no reasons for delay.”  
Recent events indicating a sharp deterioration in racial 
relations in Florida would preclude the serious considera­
tion of this assumption. This deterioration has reached 
such serious proportions that it has been officially noted 
by the chief executive of the state, who felt it necessary 
to call a conference of state, governmental and educational 
leaders on March 21 of this year for the purpose of dis­
cussing and seeking a solution to what appears to be a 
problem involving the peace and safety of the people of 
Florida. Such diverse leaders of national prominence as 
the President of the United States and Nobel prize win­
ning author William Faulkner, on separate occasions when



12

discussing the problems encountered in effectuating inte­
gration, have stressed the need for moderation.

It is respectfully submitted and with all due deference, 
that this Court did not act in a moderate manner when it 
abruptly vacated its order of May 24, 1954, and thereby 
interrupted the calm, careful, moderate and equitable ap­
proach of the Florida Supreme Court in its study of this 
problem. Previous pronouncements have all indicated that 
it is the policy of this Court to permit time and allow liti­
gants to be heard when a decision of the Court involved 
long established policy. This was permitted in each in­
stance in order to avoid hardship or injury to public or 
private interests. The present decision requires even more 
consideration of the problem of time and adjustment than 
in the earlier cases. This is clearly true because it involves 
a vast problem of human engineering, as contrasted to pre­
vious delays for adjustment granted in anti-trust cases, 
nuisance cases and similar cases where economic problems 
of great magnitude confronted the Court. Many of these 
cases were cited to the Court and discussed by the petitioner 
in our amicus curiae brief in the Brown case.

Sixth The factual matters which petitioners seek to 
bring before the Court are of such grave importance to 
the public safety and welfare of the people of Florida and 
to the institutions of higher learning in Florida that the 
Honorable LeBoy Collins, Governor of the State, as its 
chief executive and spokesman for the people, has requested 
that we hereby transmit his request for permission to ap­
pear with the Attorney General of Florida before this Court 
in this appeal in order to avert, if possible, a disruption 
in public affairs of statewide and even national importance. 
Accordingly, we do hereby respectfully request that the 
Honorable LeBoy Collins be permitted to appear and be



13

heard orally along with the Attorney General of Florida 
in behalf of this petition for re-consideration.

CONCLUSION

For the reasons set forth above, it is respectfully urged 
that rehearing be granted and that, upon such rehearing, 
the application of equitable principles be permitted in put­
ting into effect this Court’s decree of integration in the 
Florida University College of Law.

Respectfully submitted,

R ichard  W . E rvin  
Attorney General 
State of Florida

R alph  E . Odu m

Assistant Attorney General 
State of Florida

J o h n  J . B lair

Special Assistant Attorney General 
State of Florida

CERTIFICATE OF COUNSEL

I hereby certify that the foregoing petition for rehearing 
is presented in good faith and not for unnecessary delay 
and is restricted to grounds specified in Rule 58 of the 
rules of this Court.

R a l p h  E . Odum

Assistant Attorney General 
State of Florida



14

CERTIFICATE OF SERVICE

I do hereby certify that copies hereof have been fur­
nished to Horace E. Hill, Esq., 610 Second Avenue, Day­
tona Beach, Florida, and to Robert L. Carter, Esq., 20 
West 40th Street, New York, Attorneys for Respondent, 
by Registered Mail, the 2nd day of April, 1956.

R alph  E. O dum

Assistant Attorney General 
State of Florida

APPENDIX

SUPREME COURT OF THE UNITED STATES

No. 624.— October Term, 1955.

T h e  S tate of F lobida, ex rel. 
V ibgil D. H a w k in s ,

Petitioner
v.

T h e  B oard of C ontrol, et al.
On Petition for Writ 
of Certiorari to the 

Supreme Court of 
Florida.

(March 12, 1956.)
Per Curiam.

The petition for certiorari is denied.
On May 24, 1954, we issued a mandate in this case to 

the Supreme Court of Florida. 347 U. S. 971. We directed 
that the case be reconsidered in light of our decision in 
the Segregation Cases decided May 17, 1954, Brown v.



15

Board of Education, 347 U. S. 483. In doing so, we did 
not imply that decrees involving graduate study present 
the problems of pxiblic elementary and secondary schools. 
We had theretofore, in three cases, ordered the admission 
o f Negro applicants to graduate schools without discrimi­
nation because of color. Sweatt v. Painter, 339 U. S. 629; 
Sipuel V: Board of Regents of the University of Oklahoma, 
332 U. S. 631; cf. McLaurm v. Oklahoma State Regents for 
Higher Education, 339 U. S. 637. Thus, our second deci­
sion in the Brown case, 349 U. S. 294, which implemented 
the earlier one, had no application to a case involving a 
Negro applying for admission to a state law school. Ac­
cordingly, the mandate of May 24, 1954, is recalled and 
is vacated. In lieu thereof, the following order is entered:

Per Curiam: The petition for writ of certiorari is
granted. The judgment is vacated and the case is remanded 
on the authority of the Segregation Cases decided May 17, 
1954, Brown v. Board of Education, 347 U. S. 483. As this 
case involves the admission of a Negro to a graduate pro­
fessional school, there is no reason for delay. He is en­
titled to prompt admission under the rules and regulations 
applicable to other qualified candidates. Sweatt v. Painter, 
339 IT. S. 629; Sipuel v. Board of Regents of the University 
of Oklahoma, 332 U. S. 631; cf. McLaurm v. Oklahoma State 
Regents for Higher Education, 339 U. S. 637.



I