Amendment to Complaint to Conform to Plaintiffs' Motion for Additional Relief

    IN  TH E

Supreme (tart of tljr lotted States
October Term, 1955

No.

R u t h  B ooker, An Infant, By Dovie Booker, Her Mother and Next 
Friend, N ellie  P eoples, An Infant, By Manie Peoples, Her 
Mother And Next Friend, M ardest K now les V a n  H ook, An 
Infant, By Mardest Harris, Her Mother and Next Friend, And 
E l ij a h  N oel, J oseph  M cG h e e , J r .,

Petitioners,
vs.

S tate of T e n n e sse e  B oard of E d ucation , Q u il l  E . Cope , S tate 
Co m m issio n er  of E ducation  and  C h a ir m a n  S tate  B oard of 
E ducation , E rnest  C. H a ll , N orm an  F rost, E dward L. 
J e n n in g s , W . R. L a n d h u m , C hester  P a r h a m , F erdinand  
P ow ell , R obert P . W il l ia m s , J . H oward W ard, S am  W il s o n , 
M em bers of t h e  S tate B oard of E ducation  of T e n n e ss e e , 
J . M . S m it h , P resident  of M e m p h is  S tate  C ollege, R . P . 
Cla rk , R egistrar of M e m p piis  S tate C ollege,

Respondents.

MOTION FOR LEAVE TO FILE PETITION FOR WRIT 
OF MANDAMUS, PETITION FOR WRIT OF MANDAMUS 
TO THE UNITED STATES DISTRICT COURT FOR THE 
WESTERN DISTRICT OF TENNESSEE, WESTERN DIVI­
SION AND THE HONORABLE MARION S. BOYD, JUDGE 
OF THE UNITED STATES DISTRICT COURT FOR THE 
WESTERN DISTRICT OF TENNESSEE, WESTERN DIVI­

SION AND BRIEF IN SUPPORT THEREOF.

H . T . L ockard,
Z. A lexander  L ooby,
R obert L. Carter,
T hurgood M a r sh a ll ,

Counsel for Petitioners.
J . F , E stes,
B. L . H ooks,
A . W . W il l is , J r .,
J ack  G reenberg ,

of Counsel.

S upreme P rinting  Co., I nc., 114 W orth S treet, N. Y. 13, B E ek m a n  3 - 2320 
«£gfe>49



I N D E X
PAGE

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

Petition for W rit ........................................................ 3
Opinions Below.......................................................... 4
Jurisdiction................................................................  4
Question Presented .................. , ..............................  4
Statement ..................................................................  4
Reasons for Granting the W rit ................................  6
1. The decision of the court below conflicts with this 

Court’s decision in Frasier v. Board of Trustee,
— U. S. —, 100 L. ed. (Advance p. 350) (1956) 7

2. If the Frasier case does not control, the petition
should be granted to resolve conflict among 
inferior federal courts.........................................  8

A p p e n d ix  :

Complaint.......................................................   11
Finding of Facts and Conclusions of L aw ................ 19
Final Decree............................................................... 23

Cases Cited

Bush et al. v. New Orleans School Board et al.,
— F. Supp. — (E. D. La., 1956) ...........................  8

Chapman v. Boynton, 4 F. Supp. 43 (D. C. Kans.
1933) ..................................................  7

Ex parte Bransford, 310 U. S. 354 (1940) ..............  6n
Ex parte Poresky, 290 U. S. 30 (1933) ...................... 7, 8
Frasier v. Board of Trustees, 134 F. Supp. 589

(1955) , ai'f’d — 1J. S. — 10OL. ed. (Advance p. 350)
(1956) ....................................................................  7,8,9



11
PAGE

Norumbega Co. v. Bennett, 290 U. S. 598 (1933) . . . .  7
Stratton v. St. Louis Southwestern Railway Co., 282 

U. S. 10 (1930)........................................................ 6n
Tureaud v. Board of Supervisors, 116 F. Supp. 248

(E. D. La. 1953), rev. 207 F. 2d 807 (CA 5th 1953), 
vac. and rem. 347 U. S. 971, orig. judg. reinstated 
by Dist. Ct. and afif’d on appeal, 225 F. 2d 434 (CA 
5th 1955), rev. on rehear. 226 F. 2d 714 (CA 5th
1955), orig. judg. reinstated, — F. 2d —, Jan. 6,
1956 ........................................................................ 8, 9

Unexcelled Chemical Co. v. United States, 345 U. S.
59 (1953) ................................................................  7n

United Drug Co. v. Graves, 34 F. 2d 808 (M. D. Ala.,
1929) ......................................................................  7

United States v. Congress of Industrial Organiza­
tions, 335 U. S. 106 (1948)...................................... 7n

United States v. Universal C.I.T. Credit Corp., 344 
U. S. 218 (1952)............................................    7n

Willis v. Walker, 136 F. Supp. (Advance pp. 177,
178 (D. C. W. D. Ky. 1955) ..................................  9

Willis v. Walker, 136 F. Supp. (Advance p. 181) . . .  9

Other Authorities Cited

Code of Tennessee:
Sections 11395, 11396, 11397 ............................... 4

Robertson and Kirkham, Jurisdiction of the Supreme 
Court of the United States (Wolfson and Kurland 
ed.) p. 360 ..............................................................  6n

Tennessee Constitution:
Section 12 of Article 11 ........................................ 4

United States Code:
Title 28, Section 1651.........................................  3; 4
Title 28, Sections 2281-2284 .............................3, 5, 6, 8

United States Constitution:
Fourteenth Amendment..................................... 4? 5



IN  T H E

(Emtrt of tip Mttttob States
October Term, 1955 

No.

------------ o—.—--------------

R u t h  B o o k er , et al.,
Petitioners,

v.

S t a t e  oe T e n n e s s e e  B oard o f  E d u c a t io n , et al.,
Respondents.

-------------------o--------- -------—

Motion for Leave to File Petition for 
Writ of Mandamus

The petitioners move the Court for leave to file the peti­
tion for a writ of mandamus hereto annexed; and further 
move that an order and rule be entered and issued direct­
ing the Honorable The United States District Court for 
the Western District of Tennessee, Western Division, and 
the Honorable Marion S. Boyd, Judge of the United States 
District Court for the Western District of Tennessee, West­
ern Division, to show cause why a writ of mandamus should 
not be issued against them in accordance with the prayer of 
said petition, and why your petitioner should not have such



2

other and further relief in the premises as may be just and 
meet.

H . T . L o c k a ed ,
Z. A l e x a n d e r  L ooby ,
E o b er t  L . C a r t e r ,
T h u r g o o d  M a r s h a l l ,

Counsel for Petitioners.

J. F. E s t e s ,
B. L . H o o k s ,
A . W . W il l is , J r .,
J a c k  G r e e n b e r g ,

of Counsel.



3

IN THE

(Emtrt nf t e  ^ ta ta
October Term, 1955 

No.

--------------------------- o ----------------------------— —

R u t h  B o o k e r , et al.,
Petitioners,

v.

S ta te  o f  T e n n e s s e e  B oard o f  E d u c a t io n , et al.,
Respondents.

o

PETITION FOR A WRIT OF MANDAMUS TO THE 
UNITED STATES DISTRICT COURT FOR THE WEST­
ERN DISTRICT OF TENNESSEE, WESTERN DIVISION, 
AND THE HONORABLE MARION S. BOYD, JUDGE OF 
THE UNITED STATES DISTRICT COURT FOR THE 

WESTERN DISTRICT OF TENNESSEE, 
WESTERN DIVISION.

Petitioners pray that pursuant to Title 28, United States 
Code Section 1651, a writ of mandamus issue to the United 
States District Court for the Western District, Western 
Division, and to the Honorable Marion S. Boyd, Judge of 
the United States District Court for the Western District 
of Tennessee, Western Division, directing them to proceed 
pursuant to Title 28, United States Code, §§ 2281-2284, to 
convene a three-judge district court to hear and determine 
this cause.



4

Opinions Below

The opinion of the court below is nnreported. Its Find­
ings of Fact and Conclusions of Law appear at p. 19, infra* 
its Final Decree at p. 23, infra.

Jurisdiction

The jurisdiction of this Court is invoked under Title 28 
United States Code, Section 1651.

Question Presented

Whether a single judge United States District Court had 
jurisdiction to decide this case in which plaintiffs sought to 
enjoin state officers in the enforcement of constitutional and 
statutory provisions of the State of Tennessee on grounds 
of their conflict with the Fourteenth Amendment to the 
United States Constitution.

Statement

On May 26, 1955, plaintiffs, Negroes, filed a complaint 
against the State of Tennessee Board of Education, State 
Commissioner of Education, members of the State Board of 
Education, and the President and Registrar of Memphis 
State College, alleging that plaintiffs, because of race, had 
been excluded from Memphis State College under Sections 
11395, 11396 and 11397 Code of Tennessee and Section 12 
of Article 11 of the Tennessee Constitution (pp. 12-16, 
infra). These provisions forbid and make criminal the 
attendance of white and colored persons at the same school 
(pp. 15-16, infra). Plaintiffs sought to enjoin their exclu-

* The complaint, the district court’s findings of fact and conclu­
sions of law, and its final decree appear in the Appendix, pp. 11-23, 
infra.



5

sion from the college and enforcement of these laws, alleg­
ing their invalidity under the Fourteenth Amendment to 
the United States Constitution.

They prayed that a special three-judge district court 
be convened pursuant to Title 28, United States Code, Sec­
tions 2281-2284 (p. 17, infra).

Defendants denied the unconstitutionality of these pro­
visions. They alleged difficulties in admitting Negroes and 
filed a resolution of the State Board of Education dealing 
with desegregation.1

The district judge refused to convene a three-judge 
court pursuant to Section 2281-2284, holding that:

“ 1. The Court is of the opinion that the decision 
of the Supreme Court of the United States in the 
case of Brown v. Topeka, decided May 31, 1955, defi­
nitely establishes the invalidity of the Tennessee con­
stitutional provisions and statutes requiring the seg­
regation of the races in the public schools, to the 
extent that as a matter of law these provisions have 
been invalid since that date and that such invalidity

1 Briefly, this resolution would admit qualified Negroes to certain 
graduate schools in 1955-56; to graduate and senior classes in 1956- 
57; to graduate senior and junior classes in 1957-58; to graduate 
senior, junior and sophomore classes in 1958-59; to graduate senior, 
junior, sophomore and freshman classes in 1959-60. It concluded 
by staying the operation of this transition plan until “the provisions 
of the Constitution and statutes of Tennessee requiring segregated 
public education be held invalid as contrary to the Constitution of 
the United States in a legal proceeding” ; until it is determined that 
the opinions in the school segregation cases apply to state colleges 
and universities in Tennessee; and until “other available grounds 
of defense which will manifest the right of the sovereign state of 
Tennessee to arrange and provide free education for its citizens on 
its own terms and conditions, provided that only all are treated 
fairly and equally have been presented in court”. This appears in 
defendants’ answer which is at pp. lla-18a of the record filed in the 
Court of Appeals for the Sixth Circuit, a copy of which has been 
submitted with this petition.



6

is so patent that a three-judge district court is un­
necessary to determine such invalidity” 2 (p. 21, 
infra).

Reasons for Granting the Writ

Where the district judge has ruled that he will hear the 
case while sitting alone and petitioner contends that he is 
entitled to have the case heard before three judges, man­
damus is the proper remedy.3

The three-judge court statute Title 28, Section 2281- 
2284, is unequivocal and speaks in mandatory terms. From 
the language alone there does not appear to be the slightest 
question that this is a case which must be heard by three 
judges. Section 2281 states :

“ An interlocutory or permanent injunction re­
straining the enforcement, operation or execution 
of any State statute by restraining the action of any 
officer of such State in the enforcement or execution 
of such statute . . . shall not be granted by any dis­
trict court or judge thereof upon the ground of the 
unconstitutionality of such statute unless the applica­
tion therefor is heard and determined by a district 
court of three judges under Section 2284 of this 
title.”

2 The Court adopted the plan set forth in fn. 1, supra (R. 93a, 
95a). To preserve their rights petitioners have appealed to the 
Court of Appeals for the Sixth Circuit and said appeal is there 
pending, No. 12,775. However, in the belief that the district court 
had no jurisdiction because the case was one for three judges, peti- 
titioners come here to pray for a writ of mandamus.

3 Ex parte Bransjord, 310 U. S. 354 (1940); Stratton v. St. 
Louis Southwestern Railway Co., 282 U. S. 10 (1930). See also 
Robertson and Kirkham, Jurisdiction of the Supreme Court of the 
United States (Wolfson and Kurland ed.) p. 360.



7

In this case plaintiffs sought a permanent injunction (E. 
9a) restraining the enforcement, operation, or execution of 
state statutes (pp. 12-13, 15-16, infra), by restraining the 
action of officers of the state (pp. 13-15, 17, infra) in the 
enforcement or execution of such statutes on the grounds 
of their unconstitutionality (pp. 12, 16-17). Nothing could 
be more clear. There is no ambiguity which calls for statu­
tory interpretation or legislative history.4

1. The decision of the court below conflicts with 
this Court’s decision in Frasier v. Board o f Trustees, 
— U. S. —, 100 L. ed. (Advance p. 350) (1956).

If any question existed concerning which court, three- 
judge or one-judge, has jurisdiction in this kind of case, it 
was resolved by this Court’s affirmance in Frasier v. Board 
of Trustees, 134 F. Supp. 589 (1955) aff’d. — U. S. —-, 
100 L. ed. (Advance p. 350) (1956). The decision of the 
court below is contrary to the decision of this Court in 
the Frasier case. There, Judge Soper held a three-judge 
court proper where Negro plaintiffs asserting Fourteenth 
Amendment rights sought to enter the University of North 
Carolina, notwithstanding administrative regulations which 
barred them.

The district judge’s argument herein was that three 
judges are unnecessary because the law is clear. Although 
he did not cite authority, his decision can be related only 
to such decisions as Ex parte Poresky, 290 U. S. 30 (1933) ; 
Norumbega Co. v. Bennett, 290 U. S. 598 (1933); Chapman 
v. Boynton, 4 F. Supp. 43 (D. C. Kans, 1933); United Drug 
Co. v. Graves, 34 F. 2d 808 (M .D . Ala., 1929). In these 
cases it was held that a single judge may dismiss a com-

4 Policy and history arguments are pertinent only when statutory 
language is ambiguous, Unexcelled, Chemical Co. v. United States, 
345 U. S. 59 (1953) ; United States v. Congress of Industrial 
Organisations. 335 U. S. 106 (1948) ; United States v. Universal 
C.I.T. Credit Corp., 344 U. S. 218, 221, 222 (1952).



8
plaint seeking to enjoin the enforcement of state law on 
constitutional grounds where there is no substantial ques­
tion of constitutionality. However, this authority for ac­
tion by a single district judge is inapposite. Ex parte 
Poresky, supra, made clear the basis of such decisions: 
they hold that before a federal judge undertakes to pro­
ceed in any case, he must first ascertain whether he has 
jurisdiction; if no other jurisdictional grounds exist and 
if there is no substantial federal question, then there is no 
federal jurisdiction and the complaint must be dismissed. 
In these cases a single judge was, therefore, held .em­
powered to dismiss for want of jurisdiction. This logical 
route culminating in a finding of lack of jurisdiction cannot 
be followed to support the exercise of jurisdiction and the 
entry of an injunction by a single judge in a case wherein 
such action is prohibited in haec verba by Congressional 
enactment.

The District Court was without jurisdiction to hear and 
determine this case. A writ of mandamus should, there­
fore, issue directing the district judge to convene a three- 
judge court which will have jurisdiction herein as required 
by Title 28, Section 2281-2284.

2. If the Frasier case does not control, the petition 
should be granted to resolve conflict among inferior 
federal courts.

The decision herein and views on this issue expressed in 
other circuits conflict with the Fourth Circuit’s decision 
in the Frasier case. If for any reason this Court’s 
decision in the Frasier case can be deemed not to have ended 
this conflict, this Court should grant this petition to resolve 
it. Agreeing with the Frasier case, which now seems to 
control, is Bush et al. v. New Orleans School Board et al., — 
F. Supp. — (E. D. La., 1956) in which a three-judge court 
was convened.

However, in other cases the view was apparently other­
wise. See Tureaud v. Board of Supervisors, 116 F. Supp.



9

248 (E. D. La. 1953), reversed, 207 F. 2d 807 (CA 5th 1953), 
vacated and remanded, 347 U. S. 971, original judgment re­
instated by the district court and affirmed on appeal, 225 
F. 2d 434 (CA 5th 1955), reversed on rehearing, 226 F. 2d 
714 (CA 5th 1955), judgment on rehearing vacated and hear­
ing ordered en banc, and the original judgment of the Court 
of Appeals affirming the judgment of the lower court rein­
stated — F. 2d —, Jan. 6, 1956; a petition for writ of cer­
tiorari is now pending in this Court, No. 777. The Tureaud 
case illustrates some of the confusion that existed on this 
vital procedural question at least prior to the decision in 
the Frasier case. See also Willis v. Walker, 136 F. Supp, 
(Advance pp. 177, 178) (D. C. W. D. Ky. 1955) and Willis 
v. Walker, 136 F. Supp. (Advance p. 181), where it was 
held that a one-judge court was proper.

W h e r e f o r e  petitioners respectfully pray that an order 
and rule be issued directing The Honorable The United 
States District Court for the Western District of Ten­
nessee, Western Division, and the Honorable Marion S. 
Boyd, Judge of the United States District Court for the 
Western District of Tennessee, Western Division, to show 
cause why a writ of mandamus should not be issued against 
them in accordance with the prayer of the petitioners and 
why these petitioners should not have such other and fur­
ther relief in the premises as may be just and proper.

H. T. L ock a rd ,
Z. A l e x a n d e r  L ooby ,
R obert  L . C a r t e r ,
T h u r g o o d  M a r s h a l l ,

Counsel for Petitioners.
J. F. E s t e s ,
B. L . H o o k s ,
A. W. W il l is , J r.,
J a c k  G r e e n b e r g ,

of Counsel.





11

APPENDIX

Complaint

(Filed May 26, 1955)

1. (a) The jurisdiction of this Court is invoked under 
Title 28, United States Code, section 1331. This action 
arises under the Fourteenth Amendment of the Constitu­
tion of the United States, section 1, and the Act of May 
31, 1870, Chapter 114, section 16, 16 Stat. 144 (Title 8 
United States Code, section 41), as hereinafter more fully 
appears. The matter in controversy exceeds, exclusive of 
interest and costs, the sum or value of Three Thousand 
($3,000.00) Dollars.

(b) The jurisdiction of this Court is also invoked under 
Title 28, United States Code, section 1343. This action is 
authorized by the Act of April 20, 1871,. Chapter 22, sec­
tion 1, 17 Stat. 13 (Title 8, United States Code, section 
43), to be commenced by any citizen of the United States ox- 
other person within the jurisdiction thereof to redress the 
depxivation, under color of a state law, statute, ordinance, 
regulation, custom or usage, of rights, privileges and im­
munities secured by the Fourteenth Amendment of the 
Constitution of the United States, section 1, and by the 
Act of May 31, 1870, Chapter 114, section 16, 16 Stat. 144, 
(Title 8, United States Code, section 41), providing for 
the equal rights of citizens and of all persons within the 
jurisdiction of the United States, as hereinafter more 
fully appears.

(c) The jurisdiction of this Court is also invoked 
under Title 28, United States Code, section 2281. This is 
an action for a permanent injunction restraining, upon the 
ground of unconstitutionality, the enforcement, operation 
and execution of provisions of the Constitution and stat­
utes of the State of Tennessee by restraining the action of



12
Complaint

defendants, officers of such State, in the enforcement and 
execution of such Constitutional provisions and statutes, 
as hereinafter more fully appears.

2. This action is a proceeding under Title 28, United 
States Code, sections 2201 and 2202, for a judgment declar­
ing the rights and other legal relations of plaintiffs and all 
other Negro children eligible to attend Memphis State Col­
lege at Shelby County, Tennessee, and demanding an in­
junction, for the purpose of determining and redressing 
questions and matters of actual controversy between the 
parties, to-wit:

(a) Whether Sections 11395, 11396 and 11397, Code of 
Tennessee and that portion of Section 12 of Article 11 of 
the Tennessee Constitution which makes it unlawful for 
white and colored persons to attend the same school vio­
late the Fourteenth Amendment to the United States Con­
stitution and whether the exclusion of plaintiffs from 
Memphis State College, Shelby County, Tennessee, pursu­
ant to these statutes and constitutional provisions and any 
other law, custom, practice or usage violates the Four­
teenth Amendment to the Constitution of the United States.

3. Plaintiffs bring this action pursuant to Rule 23 
(a)(3) of the Federal Rules of Civil Procedure for them­
selves and on behalf of all other Negroes similarly situ­
ated, who are so numerous as to make it impracticable to 
bring them all before the Court and who seek a common 
relief based upon common questions of law and fact.

4. Plaintiffs are Negroes and are citizens of the United 
States, State of Tennessee, and are residents of and domi-



13

Complaint

ciled in the City of Memphis, Shelby County, Western Divi­
sion of the State of Tennessee. They all can satisfy all 
requirements for admission to Memphis State College, City 
of Memphis, Shelby County. Adult plaintiffs not appli­
cants, are either parents or guardians of the infant plain­
tiffs who are applicants.

5. The State of Tennessee has declared public educa­
tion a State function. The Constitution of Tennessee, 
Article XI, Section 12, provides:

‘ ‘ Knowledge, learning and virtue, being essential to 
the preservation of republican institutions, and the 
diffusion of the opportunities and advantages of 
education throughout the different portions of the 
State being highly conducive to the promotion of 
this end, it shall be the duty of the General Assem­
bly, in all future periods of this Government to cher­
ish literature and science.”

Pursuant to this mandate the Legislature of Tennessee 
has established a system of free State Colleges in the State 
of Tennessee according to a plan set out in an Article of 
the General Assembly of Tennessee of 1909, and supple­
ments and amendments thereto. The establishment, main­
tenance and administration of the State Colleges of Ten­
nessee is vested in a State Board of Education, and a Com­
missioner of Education.

6. Defendant, State Board of Education exists pursu­
ant to the Constitution and laws of the State of Tennessee 
as an administrative department of the State of Tennessee, 
discharging governmental functions and is by law an agency 
of the State of Tennessee. Defendant, Quill E. Cope, is



14

Complaint

the State Commissioner of Education and Chairman of the 
State Board of Education, and holds office pursuant to the 
Constitution and laws of the State of Tennessee, as an 
administrative officer of the State Department of Educa­
tion of the State of Tennessee. Defendant, J. M. Smith, 
is the president of Memphis State College, and has imme­
diate control of its operation. Defendant, R. P. Clark is 
the Registrar of Memphis State College. Defendants Fred 
S. Elliot, Norman Frost, Edward L. Jennings, R. R. Lan­
drum, Chester Parham, Ferdinand Powell, Bartow Strang, 
W. R. Webb, and Sam Wilson are members of and consti­
tute the State Board of Education of the State of Ten­
nessee.

7. The State Colleges of Tennessee are under the con­
trol and supervision of defendants, State Board of Educa­
tion and Commissioner Quill E. Cope, acting as an admin­
istrative department or division and as an agent of the 
State of Tennessee. Said defendant, State Board of Edu­
cation, is under a duty to enforce the school laws of the 
State of Tennessee; to maintain an efficient system of State 
Colleges in each grand Division of Tennessee; to determine 
the studies to be pursued, the methods of teaching, and 
to establish such colleges as may be determined by the 
legislature. Memphis State College is the only State Col­
lege established in West Tennessee.

8. Defendant, Board of Education of Tennessee main­
tains in Shelby County, Tennessee, Memphis State College 
for the education, convenience and use of white persons of 
West Tennessee and Memphis exclusively. This college 
provides space and facilities for academic, commercial,



15

Complaint

scientific and vocational instruction; for cultural and artis­
tic expression; and for athletic and physical development. 
All of these facilities are available to any white person 
resident in Shelby County, Tennessee, but denied to plain­
tiffs ’ applicant and all other persons similarly situated.

9. At the beginning of the Pall Term, 1954, three of 
the infant plaintiffs and two adults made application for 
admission to Memphis State College, the only State Col­
lege maintained by defendants in Memphis, Shelby County, 
Tennessee, but were refused admission solely on account 
of their race and color. Defendants require Negro appli­
cants to attend A & I State College, Nashville, Tennessee.

10. The defendants rely on the following provisions of 
the Tennessee Constitution and statutes which read as 
follows:

Constitution of 1870, Art. 11, Sec. 12,
“ . . . No school established or aided under this 
section shall allow white and negro children to be 
received as scholars together in the same school.

Code of Tennessee Sec. 11395 6888a37.
Unlawful for white and colored persons to attend 
same school.—It shall be unlawful for any school, 
academy, college or other place of learning to allow 
white and colored persons to attend the same school, 
academy, college, or other place of learning. (1901, 
ch. 7, sec. 1.)

11396 6888a38. Unlawful for teacher to allow 
such mixed attendance or to teach them in same



16

Complaint

class.—It shall be unlawful for any teacher, pro­
fessor, or educator in any college, academy, or 
school of learning, to allow the white and colored 
races to attend the same school, or for any teacher 
or educator, or other person to instruct or teach 
both the white and colored races in the same class, 
school, or college building, or in any other place 
or places of learning, or allow or permit the same 
to be done with their knowledge, consent, or pro­
curement. (Ib., sec. 2.)

11397 6888a39. Violation is a misdemeanor; fine 
and imprisonment.—Any person violating any of 
the provisions of this article, shall be guilty of a 
misdemeanor, and, upon conviction, shall be fined 
for each offense fifty dollars, and imprisonment not 
less than thirty days nor more than six months. 
(Ib., sec. 4, Modified.)

11. The plaintiffs and all other Negroes in West Ten­
nessee and Shelby County, Tennessee are thereby deprived 
of their rights guaranteed by the Constitution and laws 
of the United States.

12. Plaintiffs and those similarly situated and affected, 
on whose behalf this suit is brought, are suffering irrep­
arable injury and are threatened with irreparable injury 
in the future by reason of the acts herein complained of. 
They have no plain, adequate or complete remedy to redress 
the wrongs and illegal acts herein complained of other than 
this suit for a declaration of rights and an injunction. Any 
other remedy to which plaintiffs and those similarly situ­
ated could be remitted would be attended by such uncer­
tainties and delays as to deny substantial relief, would in-



Complaint

volve multiplicity of suits, cause further irreparable in­
jury and occasion damage, vexation and inconvenience, not 
only to the plaintiffs and those similarly situated, but to 
defendants as governmental agencies.

13. There is between the parties an actual controversy 
as hereinbefore set forth.

W h e b e f o b e , p l a in t if f s  respectfully pray the Court that 
upon the filing of this complaint, the Court convene a Three- 
Judge District Court as required by Title 28, United States 
Code, Sections 2281 and 2284; the Court advance this cause 
on the docket and order a speedy hearing of this action 
according to law, and that upon such hearings:

The Court adjudge, decree and declare the rights and 
legal relations of the parties to the subject matter herein 
controversy in order that such declaration shall have the 
force and effect of a final judgment or decree.

The Court entered a judgment or decree declaring that 
Sections 11395, 11396 and 11397 and any customs, prac­
tices and usages pursuant to which plaintiffs are excluded 
from Memphis State College solely because of race, violate 
the Fourteenth Amendment to the United States Consti­
tution.

This Court issued a permanent injunction forever re­
straining and enjoining defendants and each of them from 
refusing to admit plaintiffs to Memphis State College solely 
because of their race.



18

Complaint

Plaintiffs further pray that the Court will allow them 
their costs herein and such further, other or additional 
relief as may appear to the Court to be equitable and just.

Z. A l e x a n d e r  L ooby

419 Fourth Avenue, North 
Nashville, Tennessee

J. F. B a tes

145 Beale Avenue 
Memphis, Tennessee

H. T. L ockard

3223/2 Beale Avenue 
Memphis, Tennessee

E . L. Meeks

362 Beale Avenue 
Memphis, Tennessee

A. M. W il l is , J r .
336 Vance Avenue 
Memphis, Tennessee

T htjrgood  M a r s h a l l  
20 West 40th Street 
New York, New York

Counsel for Plaintiffs



19

Finding of Facts and Conclusions of Law

(Filed November 22, 1955)

The Court finds the following facts:

1. That the Tennessee State Board of Education in­
tends promptly to comply with the decision and opinion of 
the Supreme Court of the United States in the segregation 
cases and, pursuant to such intention, and in good faith, has 
devised the plain hereinafter referred to, after consultation 
with advisory groups representing various segments of 
affected interests.

2. There was no intention or effort upon the part of the 
said Board to evade or circumvent the decision of the 
Supreme Court, but, after full discussion, the Board con­
cluded the plan proposed was the most feasible in view of 
the physical capacities and financial situation of the various 
schools under its jurisdiction.

3. Memphis State College at present has the largest 
enrollment in its history and its physical facilities would 
be inadequate, should unrestricted admission be decreed.

4. At present, this institution has not been allocated 
enough funds from the State upon which its existence de­
pends and which constitutes the major portion of its finan­
cial support, to authorize unrestricted integration and to 
allow it to operate should such be done.

5. Memphis State College is located in the portion of 
the State in which the colored race maintains its highest 
density of population and is therefore subjected to the 
potential of a heavy enrollment from members of the col­
ored race.



20
Finding of Facts and Conclusions of Law

6. Memphis State College is a member of the State 
Association of Colleges whose rules require certain stand­
ards by all its members. The loss of membership in this 
association will result in students who take courses at Mem­
phis State College being deprived of credit for work done 
in such college should they desire to transfer to another 
member of the association or other similar associations. 
Virtually all institutions of collegiate standing in the United 
States are members of this or similar associations. Mem­
phis State College does not now and will not prior to July 
1, 1957, have adequate finances to enable it to maintain its 
membership in this association should there be the increase 
in applications for instruction therein which very reason­
ably may flow from unrestricted admission. Due to its loca­
tion and the high percentage of eligible colored students, 
a considerable increase in applications to it from qualified 
students of this race may be expected.

7. The Court further finds that since 1870 the State of 
Tennessee has pursued a course of segregated schools be­
tween the two races and that during this interval customs 
have arisen between the two races, which might be dis­
turbed seriously by an abrupt abrogation thereof. The 
Court finds that a gradual plan of desegration in its opinion 
offers greater possibility of eventual complete acceptance 
of the situation by members of both races than would an 
abrupt transition at present.

8. The Court also finds that the respondent members 
of the Board are proceeding with all deliberate speed in 
order to complete orderly and peaceful integration. The 
Court also finds that time is absolutely necessary to carry 
out in an effective manner the ruling of the Supreme Court.



21

Finding of Facts and Conclusions of Law 

C o n c l u s io n s  o f  L aw

1. The Court is of the opinion that the decision of the 
Supreme Court of the United States in the case of Brown 
v. Topeka, decided May 31, 1955, definitely establishes the 
invalidity of the Tennessee constitutional provisions and 
statutes requiring the segregation of the races in the public 
schools, to the extent that as a matter of law these provi­
sions have been invalid since that date and that such in­
validity is so patent that a three-judge district court is 
unnecessary to determine such invalidity.

2. The Court further concludes as a matter of law that 
the plan devised by the respondents for the integration of 
the races in the institutions under the jurisdiction of the 
respondent State Board of Education is in all respects fair 
and reasonable and in the opinion of the Court will lead 
to an orderly and peaceful integration of the two races in 
such institutions and for this reason the Court expressly 
approves such plan and directs that it be put into effect.

The State Board of Education and the institutions under 
its jurisdiction, as set forth in the plan, are hereby directed 
and required to permit negro students to enroll in said edu­
cational institutions as provided by such plan, subject to 
such reasonable rules as such institutions now have or may 
adopt as to time of enrollment with reference to the year’s 
work, and as to qualifications for enrollment. The pro­
posed plan of gradual desegregation, a certified copy of 
which was filed at the hearing, is made a part hereof by ref­
erence, and the same should be spread on the minutes of 
this Court.

The application for a permanent injunction on the part 
of the plaintiffs should be denied and the costs of the cause



22

Finding of Facts and Conclusions of Law

be adjudged as follows: Judgment shall be entered in 
accordance with this finding of fact and these conclusions 
of law.

M a k io n  S. B oyd ,
V. 8. List. Judge.

A True Copy.

Attest:

W. L loyd  J o h n s o n , Clerk, 
By P. Gr. McCluke, D. C.

(Seal)



23

Final Decree

(Filed November 22, 1955)

This cause came on to be heard at this term, on the 
motion of plaintiffs for a summary judgment which motion 
was by the Court denied.

The cause then came on to be heard on oral testimony 
without the intervention of a jury upon consideration 
whereof it was ordered, adjudged and decreed as follows, 
viz.: That the Tennessee State Board of Education and 
the collegiate institutions under its jurisdiction, as set forth 
in the plan of gradual desegregation of such institutions, a 
certified copy of which was filed in the hearing of this cause 
and heretofore ordered spread upon the minutes of this 
Court, are hereby directed and required to permit negro 
students to enroll in said institutions as provided by such 
plan, subject to such reasonable rules as such institutions 
now have or may adopt as to time of enrollment with refer­
ence to the scholastic year, and as to qualifications for en­
rollment.

The application for a permanent injunction is denied. 
The relief sought by plaintiffs being allowed in part and 
denied in part the costs of the cause are divided for which 
execution may issue.

M a b io x  S. B oyd,
U. S. District Judge.