Sipuel v Board of Regents of UOK Transcript of Record

    TRANSCRIPT OF RECORD

Supreme Court o f the United States

OCTOBER TERM, 1947

No. 369

ADA LOIS SIPUEL, PETITIONER, 

vs.

BOARD OF REGENTS OF THE UNIVERSITY OF 
OKLAHOMA, ET AL.

ON WRIT or CERTIORARI TO THE SUPREME COURT OF THE STATE
OF OKLAHOMA

PETITION FOR CERTIORARI FILED SEPTEMBER 24, 1947. 

CERTIORARI GRANTED NOVEMBER 10, 1947.



SUPREME COURT OF THE UNITED STATES

ADA LOIS SIPUEL, PETITIONER, 
vs.

BOARD OF REGENTS OF THE UNIVERSITY OF

ON PETITION FOR WRIT OP CERTIORARI TO THE SUPREME COURT

OCTOBER TERM, 1947

No.

vs.

3GENTS OF THE UN 
OKLAHOMA ET AL.

OP THE STATE OF OKLAHOMA

INDEX
Original Print

Proceedings in Supreme Court of Oklahoma...........................  2 1
Petition in error.................................................................................  2 . 1
Case-made from District Court of Cleveland County, Okla- 4

homa ................................................................................................. 4 2
Appearances ............................................................................... 4 2
Petition for writ of mandamus........................................... 7 2
Minute entry of issuance of alternative writ of

mandamus ...............................................................................  14 6
Alternative writ of mandamus.............................................  15 7
Application for time to prepare and file response. . . .  22 11
Minute entry re extension of time to respond................ 25 13
Order giving defendants additional time to prepare

and file response .................................................................  25 13
Answer ........................................................................................  27 13
Minute entries re setting ease for trial.............................  36 19
Minute entries re trial, etc.......................................................  37 19
Oral judgment of the Court.................................................. 39 21
Plaintiff’s Exhibit 1— Agreed statement of facts...........  41 22
Plaintiff’s Exhibit 2— Agreed statement of facts...........  46 24

J udd & Detweiler ( I nc. ) , Printers, W ashington, D.C., September 18,1947. 

— 2514



11 INDEX

Case-made from District Court of Cleveland County, Okla­
homa— Continued Original Print

Minute entry re denial of writ of mandamus................ 47 25
Motion for new trial................................................................. 48 25
Minute entry re denial of motion for new trial, etc.. . 49 26
Order overruling motion for new trial.............................  50 26
Minute entry re extension of time to make and serve

case-made ..............................................................................  52 27
Order extending time to make and serve ease-made. . 52 27
Journal entry ............................................................................  55 28
Reporter’s certificate................. (omitted in printing).. 58
Clerk’s certificate...........................(omitted in printing). . 62
Service of case-made.................................................................  63 29
Certificate of attorneys to case-made.................................. 64 30
Stipulation of attorneys to case-made.............................  65 30
Certificate of trial judge to case-made.............................  66 31

Stipulation extending time to file brief......................................  68 32
Motion for oral argument............................................................  72 33
Motion to advance............................................................................  74 34
Order assigning e a s e ...........................   76 35
Argument and submission ............................................................  77 35
Opinion, Welch, J ..............................................   78 35
Order correcting ............................................................................... 100 51
Note re mandate ..............................................................................  101 52
Application for leave to file petition for rehearing and

order granting sam e.....................................................................  102 52
Order recalling mandate and extending time to file peti­

tion for rehearing.......................................................................... 105 53
Petition for rehearing...................................................................... 106 54
Order denying petition for rehearing........................................... 117 61
Note re mandate ............................................................................... 118 61
Clerk’s certificate.................................... (omitted in printing). . 119

Order allowing certiorari.................................................................. 120 61



1

[fols. 1-2] [File endorsement omitted]

IN THE SUPREME COURT OF THE STATE OF 
OKLAHOMA

No. 32756
A da L ois Sipuel, Plaintiff in Error,

vs.
Boabd of Regents of the U niversity of Oklahoma, George

L. Cross, Maurice H. Merrill, George Wadsack and Roy
Gittinger, Defendants in Error

Petition in E rror— Filed Aug. 17, 1946
The said Ada Lois Sipuel, plaintiff in error, complains of 

said defendants in error for that the said defendants in 
error on the 9th day of July, 1946, in the District Court of 
Cleveland County, Oklahoma, recovered a judgment, by the 
consideration of said court, against the said plaintiff in 
error, in a certain action then pending in the said court, 
wherein the said Ada Lois Sipuel was plaintiff and the said 
Board of Regents of the University of Oklahoma, George 
L. Cross, Maurice H. Merrill, George Wadsack and Roy 
Gittinger were defendants.
[fol. 3] The original case-made, duly signed, attested, and 
filed is hereunto attached, marked “ Exhibit A ,’ ’ and made 
a part of this petition in error; and the said Ada Lois Sipuel 
avers that there is error in the said record and proceedings, 
in this, to w it:

(1) Error of the court in denying the petition of the 
plaintiff for a writ of mandamus.

(2) Errors of law occurring at the trial which were ac­
cepted to by the plaintiff.

Wherefore, plaintiff in error prays that the said judg­
ment so rendered may be reversed, set aside, and held for 
naught, and that a judgment may be rendered in favor of 
the plaintiff in error and against the defendants in error, 
upon the agreed statement of facts, and that the plaintiff 
in error be granted the relief prayed for in her petition 
and for such other relief as to the court may seem just.

Ada Lois Sipuel, by Amos T. Hall, Attorney for 
Plaintiff in Error.

1— 2514



2

[fols. 4-6] In the District Court of Cleveland County, 
State of Oklahoma

No. 14807

A da Lois Sipuel, Plaintiff,
vs.

B oard of Regents of the U niversity of Oklahoma, George 
L. Cross, Maurice H. Merrill, George Wadsack and Roy 
Gittinger, Defendants.

Case Made
A ppearances :

Amos T. Hall, Tulsa, Oklahoma; Thurgood Marshall, New 
York, New York; and Robert L. Carter, New York, New 
York, Attorneys for Plaintiff.

Mac Q. Williamson, Attorney General of Oklahoma; Fred 
Hansen, First Assistant Attorney General of Oklahoma; 
Dr. Maurice II. Merrill, Acting Dean of the School of Law, 
University of Oklahoma; and Dr. John B. Cheadle, Profes­
sor of Law, University of Oklahoma, Attorneys for De­
fendants.

Hon. Ben T. Williams, District Judge.
Bob Hunter, Jr., Court Reporter.

[fol. 7] In the District Court of Cleveland County, 
State of Oklahoma

[Title omitted]

[fol. 8] Petition for W rit of Mandamus— Filed April 6,
1946

Now comes the plaintiff, Ada Lois Sipuel, and for her 
cause of action against the defendants and each of them 
alleges and states:

1. That she is a resident and citizen of the United States 
and of the State of Oklahoma, County of Grady, and city of 
Chickasha. She desires to study law in the School of Law 
of The University of Oklahoma, which is supported and



3

maintained by the taxpayers of the State of Oklahoma, for 
the purpose of preparing herself to practice law in the State 
of Oklahoma and for public service therein and has been 
arbitrarily refused admission.

2. That on January 14, 1946, plaintiff duly applied for 
admission to the first year class of the school of law of the 
University of Oklahoma. She then possessed and still pos­
sesses all the scholastic, moral and other lawful qualifica­
tions prescribed by the Constitution and statutes of the 
State of Oklahoma, by the Board of Regents of the Uni­
versity of Oklahoma and by all duly authorized officers and 
agents of the said University and the school of law for 
admission into the first year class of the school of law of the 
said University. She was then and still is ready and willing 
to pay all lawful uniform fees and charges and to conform 
to all lawful uniform rules and regulations established by 
lawful authority for admission to the said class. Plaintiff’s 
application was arbitrarily and illegally rejected pursuant 
to a policy, custom or usage of denying to qualified Negro 
applicants the equal protection of the laws solely on the 
ground of her race and color.

[fol. 9] 3. That the school of law of the University of
Oklahoma is the only law school in the state maintained by 
the state and under its control and is the only law school in 
Oklahoma that plaintiff is qualified to attend. Plaintiff de­
sires that she be admitted in the first year class of the school 
of law of the University of Oklahoma at the next regular 
registration period for admission to such class or at the 
first regular registration period after this cause has been 
heard and determined and upon her paying the requisite 
uniform fees and conforming to the lawful uniform rules 
and regulations for admission to such class.

4. That the defendant Board of Regents of the University 
of Oklahoma is an administrative agency of the State and 
exercises overall authority with reference to the regula­
tion of instruction and admission of students in the Univer­
sity, a corporation oi’ganized as a part of the educational 
system of the state and maintained by appropriations from 
the public funds of the State of Oklahoma. The defendant, 
George L. Cross, is the duly appointed, qualified and acting 
President of the said University and as such is subject to 
the authority of the Board of Regents as an immediate



4

agent governing and controlling the several colleges and 
schools of the said University. The defendant, Maurice 
H. Merrill, is the Dean of the school of law of the said 
University whose duties comprise the government of the 
said law school including the admission and acceptance of 
applicants eligible to enroll as students therein, including 
your plaintiff. The defendant, Roy Gittinger, is the Dean 
of admissions of the said University and the defendant 
George Wadsack is the Registrar thereof, both possessing 
[fol. 10] authority to pass upon the eligibility of applicants 
who seek to enroll as students therein, including your 
plaintiff. All of the personal defendants come under the 
authority, supervision, control and act pursuant to the 
orders and policies established by the defendant Board of 
Regents of the University of Oklahoma. All defendants 
herein are being sued in their official capacity.

5. That the school of law specializes in law and pro­
cedure which regulates the courts of justice and govern­
ment in Oklahoma and there is no other law school main­
tained by the public funds of the state where plaintiff can 
study Oklahoma law and procedure to the same extent and 
on an equal level of scholarship and intensity as in the 
school of law of the University of Oklahoma. The arbitrary 
and illegal refusal of defendants Board of Regents, George 
L. Cross, Maurice H. Merrill, George Wadsack and Roy 
Gittinger, to admit plaintiff to the first year of the said 
law school solely on the ground of race and color inflicts 
upon your plaintiff an irreparable injury and will place 
her at a distinct disadvantage at the bar of Oklahoma and 
in the public service of the aforesaid state with persons 
who have had the benefit of the unique preparation in Okla­
homa law and procedure offered to white qualified appli­
cants in the law school of the University of Oklahoma.

6. That the requirements for admission to the first year 
class of the school of law are as follows: applicants must 
be at least eighteen (18) years of age and must have gradu­
ated from an accredited high school and completed two full 
years of academic college work. In addition applicants 
must have maintained at least one grade point for each 
semester carried in college or two grade points during the 
[fol. 11] last college year of not less than thirty semester 
hours. Plaintiff is over eighteen (18) years of age, has 
completed the full college course at Langston University, a



5

college maintained and operated by the State of Oklahoma 
for the higher education of its Negro citizens. Plaintiff 
maintained one grade point for each semester point car­
ried and graduated from the above named college with 
honors. She is of good moral character and has in all par­
ticulars met the qualifications necessary for admittance to 
the school of law of the University of Oklahoma which fact 
defendants have admitted. She is ready, willing and able 
to pay all lawful charges and tuition requisite to admission 
to the first year of the school of law and she is otherwise 
ready, willing and able to comply with all lawful rules and 
regulations requisite for admission therein.

7. O January 14, 1946, plaintiff applied for admission 
to the school of law of the University of Oklahoma and 
complied with all the rules and regulations entitling her to 
admission by filing with the proper officials of the University 
an official transcript of her scholastic record, Said trans­
cript was duly examined and inspected by the President, 
Dean of the School of Law and Dean of Admissions and 
Registrar of the University; defendants aforementioned, 
and found to be an official transcript as aforesaid entitling 
her to admission to the school of law of the University. 
Plaintiff was denied admission to the school of law solely 
on the ground of race and color in violation of the Constitu­
tion and laws of the United States and of the State of 
Oklahoma.

8. Defendants have established and are maintaining a 
policy, custom and usage of denying to qualified Negro 
[fol. 12] applicants the equal protection of the laws by 
refusing to admit them into the law school of the University 
of Oklahoma solely because of race and color and have con­
tinued the policy of refusing to admit qualified Negro appli­
cants into the said school while at the same time admitting 
white applicants with less qualifications than Negro appli­
cants solely on account of race and color.

9. The defendants, George L. Cross, Maurice H. Merrill, 
George Wadsack and Roy Gittinger refuse to act upon 
plaintiff’s application and although admitting that plaintiff 
possesses all the qualifications necessary for admission to 
the first year in the school of law, refused her admission 
on the ground that the defendant Board of Regents had 
established a policy that Negro qualified applicants were not 
eligible for admission in the law school of the University of



6

Oklahoma solely because of race and color. Plaintiff ap­
pealed directly to the Board of Regents for admission to 
the first year class of the law school of said University 
and such board has so far refused to act in the premises.

10. Plaintiff further shows that she has no speedy, ade­
quate remedy at law and that unless a Writ of Mandamus 
is issued she will be denied the right and privilege of pur­
suing the course of instruction in the school of law as 
hereinbefore set out.

Wherefore, plaintiff being otherwise remediless, prays 
this Honorable Court to issue a Writ of Mandamus requir­
ing and compelling said defendants to comply with their 
statutory duty in the premises and admit the plaintiff in 
the school of law of the said University of Oklahoma and 
have such other and further relief as may be just and proper, 

[fol. 13] (Signed) Amos T. Hall, 107% N. Green­
wood Avenue, Tulsa, Oklahoma; Tliurgood Mar­
shall, 20 West 40th Street, New York 18, N. Y .; 
Robert L. Carter, 20 West 40th Sti’eet, New York, 
18, N. Y., Attorneys for Plaintiff.

Duly sworn to by Ada Sipuel. Jurat omitted in printing.

[fol. 14] [File endorsement omitted]

I n  District Court or Cleveland County

M inute E ntry of Issuance of A lternative W rit of
Mandamus

4-9-46— C /M : Alternative writ of Mandamus issued to 
defendants to admit Plaintiff to Law School of University 
of Oklahoma or appear April 26, 1946, at 10 o ’clock A.M., 
and show cause as per Alternative Writ of Mandamus.

Of the Records of Cleveland County, State of Oklahoma, 
in District Court. Civil Appearance Docket No. 24, Page 
272.



7

[fol. 15] In District Court of Cleveland County

[Title omitted]

A lternative W rit of Mandamus and Return—April 9,
1946

On this the 9th day of April, 1946, upon due and proper 
application of the plaintiff showing the following facts, 
to-wit:

%
1. That she is a resident and citizen of the United States 

and of the State of Oklahoma, County of Grady, and city 
of Chickasha. She desires to study law in the School of 
Law of the University of Oklahoma, which is supported and 
maintained by the taxpayers of the State of Oklahoma, for 
the purpose of preparing herself to practice law in the 
State of Oklahoma and for public service therein and has 
been arbitrarily refused admission.

2. That on January 14, 1946, plaintiff duly applied for 
admission to the first year class of the school of law of the 
University of Oklahoma. She then possessed and still 
possesses all the scholastic, moral and other lawful qualifica­
tions prescribed by the Constitution and Statutes of the 
State of Oklahoma and by all duly authorized officers and 
agents of the said University and the school of law for ad­
mission into the first year class of the school of law of the 
[fol. 16] said University. She was then and still is ready 
and willing to pay all lawful uniform fees and charges and 
to conform to all lawful rules and regulations established 
by lawful authority for admission to the said class. Plain­
tiff’s application was arbitrarily and illegally rejected pur­
suant to a policy, custom or usage of denying to qualified 
Negro applicants the equal protection of the laws solely 
on the ground of her race and color.

3. That the school of law of the University of Oklahoma 
is the only law school in the state maintained by the State 
and under its control and is the only law school in Oklahoma 
that plaintiff is qualified to attend. Plaintiff desires that 
she be admitted in the first year class of the school of law 
of the University of Oklahoma at the next regular registra­
tion period for admission to such class or at the first regular 
registration period after this cause has been heard and de­
termined and upon her paying the requisite uniform fees

2— 2514



8

and conforming to the lawful uniform rules and regulations 
for admission to such class.

4. That the defendant Board of Regents of the University 
of Oklahoma is an administrative agency of the State and 
exercises overall authority with reference to the regulation 
of instruction and admission of students in the University, 
a corporation organized as a part of the educational 
system of the State and maintained by appropriations 
from the public funds of the State raised by taxation from 
the citizens and taxpayers of the State of Oklahoma. The 
defendant, George L. Cross, is the duly appointed, qualified 
and acting President of the said University and as such is 
subject to the Authority of the Board of Regents as an 
immediate agent governing and controlling the several col­
leges and schools of the said University. The defendant, 
[fol. 17] Maurice H. Merrill, is the Dean of the school of 
law of the said University whose duties comprise the govern­
ment of the said law school including the admission and ac­
ceptance of applicants eligible to enroll as students therein, 
including your plaintiff. The defendant, Roy Gittinger, is 
the Dean of Admissions of the said University and the 
defendant George Wadsack is the Registrar thereof, both 
possessing authority to pass upon the eligibility of appli­
cants who seek to enroll as students therein, including your 
plaintiff. All of the personal defendants come under the 
authority, supervision, control and act pursuant to the 
orders and policies established by the defendant Board of 
Regents of the University of Oklahoma. All defendants 
herein are being sued in their official capacity.

5. That the school of law specializes in law and procedure 
which regulates the courts of justice and government in 
Oklahoma and there is no other law school maintained by 
the public funds of the state where plaintiff can study 
Oklahoma law and procedure to the same extent and on an 
equal level of scholarship and intensity as in the school of 
law of the University of Oklahoma. The arbitrary and 
illegal refusal of defendants Board of Regents, George L. 
Cross, Maurice H. Merrill, George Wadsack and Roy Git­
tinger, to admit plaintiff to the first year of the said 
law school solely on the ground of race and color inflicts 
upon plaintiff an irreparable injury and will place her at 
a distinct disadvantage at the bar of Oklahoma and in public 
service of the aforesaid state with persons who have had



9

the benefit of the unique preparation in Oklahoma law and 
procedure offered to white qualified applicants in the law 
school of the University of Oklahoma.
[fol. 18] 6. That the requirements for admission to the
first year class of the school of law are as follows: applicants 
must be at least eighteen (18) years of age, and must have 
graduated from an accredited high school and completed 
two full years of academic college work. In addition appli­
cants must have maintained at least one grade point for each 
semester carrier — and graduated from the above named 
college with honors. She is of good moral character and 
has in all particulars met the qualifications necessary fox- 
admittance to the school of law of the University of Okla­
homa which fact defendants have admitted. She is ready, 
willing and able to pay all lawful charges and tuition 
requisite to admission to the first year of the school of law 
and she is otherwise ready, willing and able to comply 
with all lawful rules and regulations requisite for admission 
therein.

7. On January 14, 1946, plaintiff applied for admission 
to the school of law of the University of Oklahoma and 
complied with all the rules and regulations entitling her to 
admission by filing with the proper officials of the University 
an official transcript of her scholastic record. Said trans- 
ci-ipt was duly examined and inspected by the President, 
Dean of the School of Law and Dean of Admissions and Re- 
gistrar of the University; defendants aforementioned, and 
found to be an official transcript as afoi-esaid entitling 
her to admission to the school of law of the University. 
Plaintiff was denied admission to the school of law solely 
on the ground of race and color in violation of the Constitu­
tion and laws of the United States and of the State of 
Oklahoma.
[fol. 19] 8. Defendants have established and are main­
taining a policy, custom, and usage of denying to qualified 
Negro applicants the equal protection of the laws by refus­
ing to admit them into the law school of the University of 
Oklahoma solely because of race and color and have con­
tinued the policy of refusing to admit qualified Negro appli­
cants into the said school while at the same time admitting 
white applicants with less qualifications than Negro appli­
cants solely on account of race and color.



10

9. The defendants, George L. Cross, Maurice H. Merrill, 
George Wadsack and Roy Gittinger refuse to act upon 
plaintiff’s application and although admitting that plaintiff 
possesses all the qualifications necessary for admission to 
the first year in the school of law, refused her admission on 
the ground that the defendant Board of Regents had estab­
lished a policy that Negro qualified applicants were not 
eligible for admission in the law school of the University 
of Oklahoma solely because of race and color. Plaintiff ap­
pealed directly to the Board of Regents for admission to 
the first year class of the law school of said University and 
such board has so far refused to act in the premises.

10. Plaintiff further shows that she has no speedy, ade­
quate remedy at law and that unless a Writ of Mandamus 
is issued she will be denied the right and privilege of pur­
suing the course of instruction in the school of law as herein­
before set out.

Therefore, the Court being fully advised in the premises 
finds that an Alternative Write of Mandamus should be 
issued herein.

It is therefore ordered, considered and adjudged that all 
of the said defendants, Board of Regents of the University 
[fol. 20] of Oklahoma, George L. Cross, Maurice H. Merrill, 
and George Wadsack, each and all of them, are hereby com­
manded that immediately after receipt of this writ, you 
admit into the School of Law of the said University of Okla­
homa, the said plaintiff, Ada Lois Sipuel, or that you and 
each and all of you, the said defendants, appear before this 
court at 10:00 o ’clock A.M., on the 26th day of April, 1946, 
to show cause for your refusal so to do and that you then 
and there return this writ together with all proceedings 
thereof.

(Signed) Ben T. Williams, Judge of the District 
Court.

Witness the signature of Honorable Ben T. Williams, 
Judge of the said Court and seal affixed to the 9th day of 
April, 1946.

(Signed) Dess Burke, Court Clerk. (Seal)
State op Oklahoma,

Cleveland County, ss :
I received this alternative Writ of Mandamus this 9th 

day of April, 1946, and served the same on the persons



11

named therein as defendants on the date and in the manner 
following to-wit: On the Board of Regents by serving Emil 
R. Kraettli, he being the Secretary to the Board of Regents; 
On George L. Cross, President of the University of Okla- 
home; On Maurice H. Merrill, Dean of Law, University of 
Oklahoma, and on Roy Gittinger, Dean of Admissions, Uni­
versity of Oklahoma; on George Wadsack, Registrar, Uni­
versity of Oklahoma, by delivering to each of the above 
named individually and in their official capacity as above set 
forth, personally, a full- true and correct copy of the fore­
going alternative Writ of Mandamus on the 10th day of 
April, 1946, in Norman, Cleveland County, Oklahoma.

[fob 21] Key Durkee, County Sheriff. By (Signed) 
Geo. N. Jones, Deputy Sheriff.

Sheriff’s Fees

Serving Summons, first person.......................................$ .50
4 additional persons..........................................................  1.00
5 copies of summons..........................................................  1.25
Mileage: 10 Miles..............................................................  1.00

Total ........................................................................$3.75

Endorsed on front as follows: Filed in District Court, 
Cleveland County, Okla., Apr. 10, 1946. (Signed) Dess 
Burke, County Clerk. C.J. 31, P. 4, 5, 6.

Endorsed on back as follows: Alternative Writ of Man­
damus. Writ allowed this 9th day of April, 1946. (Signed) 
Ben T. Williams, Judge of District Court.

[fol. 22] I n  the District Court of Cleveland County, 
State of Oklahoma

[Title omitted]

A pplication for T ime to Prepare and F ile Response—  
Filed April 23, 1946

Comes now the above named defendants, and each of 
them, and respectfully inform the court that on April 9,



12

1946, an alternative writ of mandamus was issued in the 
above case in which defendants were commanded

‘ ‘ immediately after receipt of this writ, you admit into 
the School of Law of the said University of Oklahoma, 
the said plaintiff, Ada Lois Sipuel, or that you and 
each and all of you, the said defendants, appear before 
this court at 10:00 o ’clock A.M. on the 26th day of 
April, 1946, to show cause for your refusal so to do and 
that you then and there return this writ together with 
all proceedings thereof. ’ ’

That by reason of the fact that it will be necessary for 
the Attorney General of Oklahoma, as attorney for the 
above named defendants, to consult with the Oklahoma 
[fob 23] Board of Regents for Higher Education, as well 
as the Board of Regents of the University of Oklahoma, 
together with the Governor of the State, on the important 
questions raised by this litigation before preparing and 
filing an answer or response to plaintiff’s petition and said 
alternative writ of mandamus, it will be necessary for the 
court to grant defendants twenty (20) days additional 
time within which to prepare and file said answer or re­
sponse.

That telegraphic notice of this application was given by 
the Attorney General on April 20, 1946, to Mr. Amos O’. 
Hall, one of the attorneys of record for the plaintiff herein, 
who on the same date acknowledged by telegram to the 
Attorney General that he had received said notice and that 
“ in view of the circumstances set out in your message you 
are advised that we offer no objection to the court granting 
you twenty (20) days additional time * *

Wherefore, premises considered, the above named de­
fendants and each of them, respectfully ask the court to 
grant them twenty (20) days additional time within which to 
prepare and file an answer or response to plaintiff’s peti­
tion and alternative writ of mandamus in the above cause.

(Signed) Mac Q. Williamson, Attorney General of 
Oklahoma; (Signed) Fred Hansen, First Assistant 
Attorney General, Attorneys for Defendants.

[fol. 24] [File endorsement omitted.]



13

[fol. 25] In District Court of Cleveland County

Minute E ntry re Extension of T ime to Respondent

4-23-46— C /M : Defendants granted 20 days additional 
time to respond to alternative writ as per order.

Of the Records of Cleveland County, State of Oklahoma, 
in District Court. Civil Appearance Docket No. 24, 
Page 272.

I n  the District Court of Cleveland County, State of
Oklahoma

[Title omitted]

Order Giving Defendants A dditional T ime to Prepare 
and F ile Response—April 23,1946

Now on this the 23rd day of April, 1946, the application 
of defendants for twenty (20) days additional time within 
which to prepare and file an answer or response to plaintiff’s 
petition and alternative writ of mandamus in the above 
cause came on to be heard, after due notice, in regular 
[fol. 26] order; and the court having examined said appli­
cation and the allegations set forth therein finds that said 
application should be granted.

Wherefore, premises considered, it is ordered and de­
creed by the court that defendants and each of them have 
twenty (20) days additional time within which to prepare 
and file their answer or response to plaintiff’s petition and 
alternative writ of mandamus, to wit, until Thursday, 
May 16, 1946, inclusive.

(Signed) Ben T. Williams, Judge.

[File endorsement omitted.]

[fol. 27] I n  the District Court of Cleveland County, 
State of Oklahoma

[Title omitted]

A nswer— Filed May 14, 1946

Comes now the above-named defendants, and each of 
them, and in answer to the petition of plaintiff and the



14

alternative writ of mandamus issued herein, allege and 
state:
[fol. 28] 1. That the material allegations of fact set forth
in plaintiff’s petition and in said alternative writ of man­
damus are not sufficient to constitute a cause of action in 
favor of plaintiff and against defendants, or either of them.

2. That defendants, and each of them, deny the material 
allegations of fact set forth in Paragraphs 1 to 10, inclu­
sive, of plaintiff’s petition and in said alternative writ of 
mandamus (said paragraphs being identical in said petition 
and writ both as to number and phraseology), except such 
allegations as are hereinafter alleged or admitted.

3. Defendants admit the material allegations of fact set 
forth in Paragraph 1 of said petition and writ, except the 
allegation that plaintiff was “ arbitrarily refused admis­
sion’ ’ to the School of Law of the University of Oklahoma.

4. Defendants admit the material allegations of fact set 
forth in Paragraph 2 of said petition and writ, except the 
allegation that plaintiff possessed all “ other lawful quali­
fications’ ’ for admission to the first year class of the School 
of Law of the University of Oklahoma, and the allegation 
that plaintiff’s application for admission to said class was 
“ arbitrarily and illegally rejected.”

5. Defendants admit the material allegations of fact set 
forth in Paragraph 3 of said petition and writ, except the 
allegation which implies that plaintiff is “ qualified to at­
tend”  the School of Law of the University of Oklahoma.

6. Defendants admit the material allegations of fact set 
forth in Paragraph 4 of said petition and writ.

7. Defendants admit the material allegations of fact set 
forth in Paragraph 5 of said petition and writ, except the 
[fol. 29] allegation which implies that the refusal of de­
fendants to admit plaintiff to the first year class of the 
School of Law of the University of Oklahoma was an “ arbi­
trary and illegal refusal.”

8. Defendants admit the material allegations of fact set 
forth in Paragraph 6 of said petition and writ, except the 
allegation that plaintiff has “ in all particulars met the 
qualifications necessary for admittance to the School of 
Law of the University of Oklahoma which fact defendants



15

have admitted,”  and in this connection allege that while 
plaintiff is ‘ ‘ scholastically qualified for admission to the 
Law School of the University of Oklahoma”  (which fact 
has been admitted by defendant), she does not have the 
qualifications necessary for admittance at said school for 
the reason that under the constitutional and statutory pro­
visions of this State, hereinafter cited and reviewed (Para­
graphs 14 to 21 hereof), only white persons are eligible for 
admission to said school.

9. Defendants admit the material allegations of fact set 
forth in Paragraph 7 of said petition and writ, but deny the 
conclusion of law therein that the refusal of defendants to 
admit plaintiff to the School of Law of the University of 
Oklahoma on the ground of race and color was “ in viola­
tion of the Constitution and laws of the United States and 
of the State of Oklahoma.”

10. Defendants admit the material allegations of fact set 
forth in Paragraph 8 of said petition and writ, but deny the 
conclusion of law therein that the “ policy, custom and 
usage”  of defendants in refusing to admit negro applicants, 
otherwise qualified, to the School of Law of the University 
[fol. 30] of Oklahoma while continuing to admit white appli­
cants, otherwise qualified, is a denial to said negro appli­
cants of “ the equal protection of the laws.”

11. Defendants admit the material allegations of fact set 
forth in Paragraph 9 of said petition and writ, except the 
allegation which implies that the defendants, George L. 
Cross, Maurice H. Merrill, Geoi'ge Wadsack and Roy Git- 
tinger, have admitted that plaintiff “ possesses all the 
qualifications necessary for admission to the first year in 
the school of law”  of the University of Oklahoma, and the 
allegation which implies that plaintiff was denied admission 
by defendants to said school solely “ on the ground that the 
defendant, Board of Regents, had established a policy that 
negro qualified applicants were not eligible for admission 
in the law school of the University of Oklahoma solely 
because of race and color,”  and in this connection allege 
that plaintiff was denied admission by said defendants to 
said school not only by virtue of said policy, but by reason 
of the constitutional and statutory provisions of the State 
of Oklahoma, hereinafter cited and reviewed (Paragraphs 
14 to 21 hereof).

3— 2514



16

12. Defendants deny the conclusions of law set forth in 
Paragraph 10 of said petition and writ.

13. Defendants, and each of them, allege and admit that 
the plaintiff, Ada Lois Sipuel, a colored or negro citizen and 
resident of the United States of America and the State of 
Oklahoma, duly and timely applied on January 14, 1946, 
for admission to the first year class of the School of Law 
of the University of Oklahoma for the semester beginning 
January 15, 1946, and that she then possessed and still 
[fol. 31] possesses all the scholastic and moral qualifica­
tions required for such admission by the constitution and 
statutes of this State and by the Board of Regents of the 
University of Oklahoma, but deny that she was then pos­
sessed and still possesses all “ other qualifications”  re­
quired by said constitution, statutes and board, for the 
reason that under the public policy of this State announced 
in the constitutional and statutory provisions hereinafter 
cited and reviewed (Paragraphs 14 to 21 hereof), colored 
persons are not eligible for admission to State school estab­
lished for white persons, such as the School of Law of the 
University of Oklahoma.

14. That Section 3, Article 13 of the Constitution of 
Oklahoma provides, in part, that:

“ Separate Schools for white and colored children 
with like accommodation shall be provided by the 
Legislature and impartially maintained.”

15. That 70 0. S. 1941 § 363 provides in part that:
“ All teachers of the negro race shall attend separate 

institutes from those for teachers of the white 
race, * * *.”

16. That 70 0. S. 1941 § 455 makes it a misdemeanor, 
punishable by a fine of not less than $100.00 nor more than 
$500.00, for

“ Any person, corporation or association of persons 
to maintain or operate any college, school or institu­
tion of this State where persons of both white and 
colored races are received as pupils for instruction,”

and provides that each day same is so maintained or 
operated “ shall be deemed a separate offense.”



17

[fol. 32] 17. That 70 0. S. 1941 § 456 makes it a misde­
meanor, punishable by a fine of not less than $10.00 no- more 
than $50.00, for any instructor to teach

“ in any school, college or institution where members 
of the white race and colored race are received and en­
rolled as pupils for instruction,”

and provides that each day such an instructor shall continue 
to so teach “ shall be considered a separate offense.”

18. That 70 O. S. 1941 § 457 makes it a misdemeanor, pun­
ishable by a fine of not less than $5.00 nor more than $20.00, 
for

“ any white person to attend any school, college or 
institution, where colored persons are received as 
pupils for instruction,”

and provides that each day such a person so attends “ shall 
• be deemed a distinct and separate offense.”

19. That 70 O. S. 1941 § § 1591, 1592 and 1503, in effect, 
provide that if a colored or negro resident of the State of 
Oklahoma who is morally and educationally qualified to 
take a course of instruction in a subject taught only in a 
State institution of higher learning established for white 
persons, the State will furnish him like educational facili­
ties in comparable schools of other States wherein said 
subject is taught and in which said colored or negro resi­
dent is eligible to attend.

20. That the material part of Senate Bill No. 9 of the 
Twentieth Oklahoma Legislature (same being the general 
departmental appropriation bill for the fiscal years ending 
June 30, 1946 and June 30, 1947), which was enacted to 
finance the provisions of 70 O. S. 1941 § § 1591, 1592 and 
1593, supra, is as follows:

[fol. 33] State B oabd of E ducation

Fiscal Year Fiscal Year 
ending ending

June 30,1946 June 30,1947
“For payment of Tuition Fees and transpor­

tation for certain persons attending insti- 
tions outside the State of Oklahoma as
provided by law ...............................................  $15,000.00 $15,000.00.”



18

21. That 70 0. S. 1941 §§ 1451 to 1509, as amended in 
1945, established a State institution of higher learning now 
known as “ Langston University”  for “ male and female 
colored persons”  only, which institution, however, does not 
have a school of law.

22. That the constitutional and statutory provisions of 
Oklahoma, heretofore cited and reviewed (Paragraphs 14 
to 21 hereof), have been uniformly construed by defendants 
and their predecessors as prohibiting the admission of 
persons of the colored or negro race to the School of Law 
of the University of Oklahoma, and pursuant to such inter­
pretation it has been their administrative practice to admit 
only white persons, otherwise qualified, to said school.

23. That petitioner has not applied, nor in her petition 
and/or alternative writ of mandamus alleged that she has 
applied, to the Board of Regents of Higher Education of 
this State for it, under authority of Article 13a of the Con­
stitution of Oklahoma, to prescribe a school of law similar t 
to the school of law of the University of Oklahoma as a part 
of the standards of higher education of Langston Univer­
sity, and as one of the courses of study, thereof, so that 
she will be able as a negro citizen of the United States and 
[fol. 34] the State of Oklahoma to attend said school without 
violating the public policy of said State as evidenced by 
the constitutional and statutory provisions of Oklahoma 
heretofore cited and reviewed (Paragraphs 14 to 21 here­
of).

24. That by reason of the foregoing constitutional and 
statutory provisions and administrative interpretation and 
practice, it cannot properly be said that “ the law specifically 
enjoins”  upon defendants, or either thereof (within the 
meaning of 12 0. S. 1941 §§1451 to 1462, inclusive, relating 
to “ Mandamus” ), the duty of admitting plaintiff to the 
School of Law of the University of Oklahoma.

Wherefore, premises considered, defendants, and each 
of them, respectfully ask the court to decline to issue the 
writ of mandamus prayed for in this cause, that plaintiff 
take nothing by her petition, and that defendants recover 
their cost herein expended.

Mac Q. Williamson, Attorney General of Oklahoma. 
(Signed) Fred Hansen, First Assistant Attorney 
General, Attorneys for Defendants.



19

Duly sworn to by George L. Cross. Jurat omitted in print­
ing.

[fol. 35] [File endorsement omitted.]

[fol. 36] I n Disteict Court of Cleveland County

M inute E ntries be Setting Case for T rial

5-21-46— C /M : Cause set for trial Friday, May 31, 1946, 
at 10:00 o ’clock A. M., by agreement and clerk ordered to 
notify counsel.

Of the Records of Cleveland County, State of Oklahoma, 
in District Court. Civil Appearance Docket No. 24, Page 
272.

Thereafter, and under date of May 31st, 1946, the Clerk 
of the District Court entered herein a Minute, same appear­
ing in words and figures as follows, to-wit:

5- 31-46— C/M : Cause continued at request of plaintiff’s 
counsel to be reset by agreement.

Of the Records of Cleveland County, State of Oklahoma, 
in District Court. Civil Appearance Docket No. 24, Page 
272.

Thereafter, and under date of June lltli, 1946, the Clerk 
of the District Court entered herein a Minute, same appear­
ing in words and figures as follows, to-wit:

6- 11-46— C /M : Cause set for trial by agreement of coun­
sel for Tuesday, July 9, 1946, at 10:00 o ’clock A. M.

Of the Records of Cleveland County, City of Oklahoma, 
in District Court. Civil Appearance Docket No. 24, Page 
272.

[fol. 37] I n District Court of Cleveland County

M inute E ntries re Trial, etc.

Now on this the 9tli day of July, 1946, the above styled 
and numbered cause came regularly on for trial before the



20

Honorable Ben T. Williams, District Judge in and for the 
Twenty-First Judicial District, State of Oklahoma, upon 
plaintiff’s petition for a Writ of Mandamus filed herein.

The plaintiff, Ada Louis Sipuel, appeared in person 
and by counsel, Amos T. Hall; and the defendants, Board 
of Regents of the University of Oklahoma, et ah, appeared 
by counsel, Fred Hansen, First Assistant Attorney General 
of Oklahoma, and Dr. Maurice H. Merrill, Acting Dean of 
the School of Law, University of Oklahoma, and both par­
ties announced ready for trial.

AVhereupon, the following proceedings were had and 
entered herein, to-wit:

Thereupon, Mr. Hall, Counsel for Plaintiff, offered into 
evidence Plaintiff’s Exhibit “ 1” , being a written stipulation 
of facts, signed by counsel, and there being no objections, 
the Court ordered same marked Plaintiff’s Exhibit “ 1”  and 
introduced in evidence.

Thereupon, Mr. Hall, Counsel for Plaintiff, offered into 
evidence Plaintiff’s Exhibit “ 2,”  being a written stipula­
tion of facts, and there being no objections, the Court or­
dered same marked Plaintiff’s Exhibit “ 2”  and introduced 
in evidence.

And Thereupon the Plaintiff rested and the Defendants 
rested.

Whereupon, there being no further evidence or testimony 
in this case, Mr. Hall, of Counsel for Plaintiff, made the 
opening argument on behalf of plaintiff; Mr. Hansen and 
Dr. Merrill, of Counsel for Defendants, made the argument 
on behalf of the defendants; and Mr. Hall made the closing 
argument to the Court on behalf of the plaintiff.
[fol. 38] Thereafter, and at the conclusion of the argu­
ment in this case the following remarks were made by the 
Court and Counsel for Plaintiff, to-wit:

By the Court: Let the record show that at the conclusion 
of the argument in this case the Court suggests to Mr. Hall 
that while the Court is not suggesting that Mr. Hall’s re­
marks might be improper in any way, still the law, in the 
Court’s estimation, presumes that all Courts have the cour­
age to do their duty and certifies to the record that to the 
best of his understanding and ability that this Court feels 
that he has the courage to do his duty in this or any other 
judicial proceeding.



21

By Mr. Hall, of Counsel for plaintiff: I f the Court please, 
I do not mean to imply that this Court hasn’t the courage 
to do his duty. In cases of this kind it does require courage, 
but I feel sure that if your honor holds and finds and renders 
judgment against us that would not indicate to me at all 
that you do not have the courage. I didn’t mean that this 
Court doesn’t have the courage, but all courts must have 
the courage to give the the colored people their rights. They 
have been to the Legislature and to the Board of Regents 
and haven’t received their rights, and the courts are the 
last resort. I realize that we have dropped a hot potato 
in the court’s lap, and whatever the judgment is, we know 
it will be the court’s honest decision and judgment. I am 
sorry that the Court misunderstood me as I had no inten­
tion of inferring that your Honor didn’t have the courage 
to render a just decision in this case.
[fol. 39] Thereupon, the Court ordered the hearing in this 
cause recessed to the hour of 7 :30 P. M., this date.

And Thereafter, at the hour of 7 :45 P. M. the Court 
reconvened and the Court made and entered herein the 
following judgment, to-wit:

In District Court of Cleveland County

Oral Judgment of the Court

By the Court: Gentlemen, the Court adopts the view ad­
vanced by Mr. Hansen in his argument wherein, among other 
things, we find this quotation from a Kansas case (Sharp­
less vs. Buckles, 70 Pac. 886):

“ Mandamus will not lie to require a county canvass­
ing board to recanvass returns and exclude from the 
count certain votes because cast and returned under a 
law that is claimed to be unconstitutional, since the 
determination of such question is not a duty imposed 
upon the board, nor within its power.”

And the quotation found in an Indiana case (State ex rel. 
Hunter vs. Winterrowd (Ind.), 92 N. E. 650):

“ It is quite a different thing to hold that such an 
officer must at his peril disobey the specific commands 
of a law duly enacted and promulgated, at the behest



22

of any one who may be of the opinion that such law is 
unconstitutional. The proper function of mandamus 
is to enforce obedience to law, and not disobedience, 
or even to litigate its validity.”

And also the quotation found in a Connecticut case (Com- 
ley vs. Boyle, 162 A. 26):

[fol. 40] “ The court properly refused to consider con­
stitutionality of ordinance. Court in such case properly 
refused to consider the constitutionality of the ordi­
nance, whether such conclusion be based upon the trial 
court’s valid exercise of its discretion in refusing the 
building permit or upon the broader ground that it was 
not the province of that court to pass upon the ques­
tion.”

The Court heard with interest the argument of Dr. Mer­
rill, but does not pass either pro or con upon the validity 
of such argument.

The application for mandamus is denied and exceptions 
allowed.

[fol. 41] In the District Court of Cleveland County, 
State of Oklahoma

[Title omitted]

Plaintiff’s E xhibit “ 1 ”  A greed Statement of F acts

1. That the plaintiff is a resident and citizen of the United 
States and of the State of Oklahoma, County of Grady and 
City of Chickasha; that she desires to study law in the 
School of Law in the University of Oklahoma for the pur­
pose of preparing herself to practice law in the State of 
Oklahoma.

2. That the School of Law of the University of Oklahoma 
is the only Law School in the State maintained by the State 
and under its control.

3. That the Board of Regents of the University of Okla­
homa is an administrative agency of the State and exer­
cising overall authority with reference to the regulation 
of instruction and admission of students in the University ;



23

that the University is a part of the educational system of 
the State and is maintained by appropriations from the 
public funds of the State raised by taxation from the citizens 
[fol. 42] and taxpayers of the State of Oklahoma; that the 
School of Law of Oklahoma University specializes in law 
and procedure which regulates the Court of Justice and 
Government in Oklahoma; that there is no other law school 
maintained by the public funds of the State where the plain­
tiff can study Oklahoma law and procedure to the same 
extent and on an equal level of scholarship and intensity 
as in the School of Law of the University of Oklahoma; 
that the plaintiff will be placed at a distinct disadvantage at 
the bar of Oklahoma and in the public service of the afore­
said State with persons who have had the benefit of the 
unique preparation in Oklahoma law and procedure offered 
to white qualified applicants in the School of Law of the 
University of Oklahoma, unless she is permitted to attend 
the School of Law of the University of Oklahoma.

4. That the plaintiff 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.

5. That the plaintiff duly and timely applied for admis­
sion to the first year class of the School of Law of the 
University of Oklahoma on January 14, 1946, for the 
semester beginning January 15, 1946 and that she then 
possessed and still possesses all the scholastic and moral 
qualifications required for such admission.

6. That on January 14, 1946, when plaintiff applied for 
admission to the said school of law, she complied with all 
[fol. 43] of the rules and regulations entitling her to ad­
mission by filing with the proper officials of the University, 
an official transcript of her scholastic record; that said 
transcript was duly examined and inspected by the Presi­
dent, Dean of Admissions and Registrar of the University 
and was found to be an official transcript, as aforesaid, 
entitling her to admission to the School of Law of the said 
University.

7. That under the public policy of the State of Oklahoma, 
as evidenced by the constitutional and statutory provisions 
referred to in defendants’ answer herein, plaintiff was

4—2514



24

denied admission to the School of Law of the University of 
Oklahoma solely because of her race and color.

8. That the plaintiff at the time she applied for admission 
to the said law school 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 regulations of 
the said University.

9. That plaintiff has not applied to the Board of Regents 
of Higher Education of the State of Oklahoma for it, under 
authority of Article 13-A of the Constitution of Oklahoma, 
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 University, and as one of 
the courses of study thereof.

Dated this 8th day of July, 1946.
[fols. 44-45] (Signed) Amos T. Hall, 107^2 North 

Greenwood Ave., Tulsa, Oklahoma; Tliurgood Mar­
shall, 20 West 40th Street, New York 18, New York; 
Robert L. Carter, 20 West 40th Street, New York 
18, New York, Attorneys for Plaintiff.

(Signed) Mac Q. Williamson, Attorney General of 
Oklahoma; (Signed) Fred Hansen, First Assistant 
Attorney General; Maurice H. Merrill, Attorneys 
for Defendants.

[fol. 46] In District Court op Cleveland County

Plaintiff’s E xhibit “ 2 ” — A greed Statement of F acts

It is hereby stipulated and agreed by and between counsel 
for plaintiff and defendants that the court may consider the 
following as an admitted fact:

That after the filing of this cause the Board of Regents 
of Higher Education, having knowledge thereof, met and 
considered the questions involved therein; that it had no 
unallocated funds in its hands or under its control at that 
time with which to open up and operate a law school and 
has since made no allocation for that purpose; that in 
order to open up and operate a law school for negroes in 
this state, it will be necessary for the board to either with­
draw existing allocations, procure moneys, if the law per­



25

mits, from the Governor’s contingent fund, or make an 
application to the next Oklahoma legislature for funds 
sufficient to not only support the present institutions of 
higher education but to open up and operate said law school; 
and that the Board has never included in the budget which 
it submits to the Legislature an item covering the opening 
up and operation of a law school in the State for negroes 
and has never been requested to do so.

[fol. 47] In District Court of Cleveland County

Minute E ntry R e Denial of W rit of Mandamus

7-9-46— C /M : Evidence submitted by written stipulation, 
argument heard. Peremptory Writ of Mandamus denied as 
per Journal Entry.

Of the Records of Cleveland County, State of Oklahoma, 
in District Court. Civil Appearance Docket No. 24, Page 
272.

[fol. 48] In the District Court of Cleveland County, 
State of Oklahoma

[Title omitted]

Motion for New Trial—Filed July 11, 1946

Comes now the plaintiff and moves the Court to vacate 
the judgment rendered in this cause on the 9th day of 
July, 1946, and to grant a new trial herein for the reasons 
hereinafter set out which materially affect the substantial 
rights of the Plaintiff:

(1) Error of the Court in denying the petition of the 
plaintiff for a writ of mandamus.

(2) Errors of law occurring at the trial which were ex­
cepted to by the plaintiff.

Wherefore, plaintiff prays the Court to vacate, set aside 
and hold naught the judgment heretofore rendered in this 
cause and to grant a new trial herein.

(Signed) Amos T. Hall, Attorney for Plaintiff.
[File endorsement omitted.]



[fol. 49] I n  District Court of Cleveland County 

Minute E ntry re Denial of Motion for New T rial, etc.

7-12-46— C /M : Motion for new trial comes on by agree­
ment of the parties, is considered and overruled and excep­
tions allowed. Plaintiff gives notice in open Court of her 
intentions to appeal to the Supreme Court of the State of 
Oklahoma and asks that such intentions be noted upon the 
Minutes, Dockets and Journals of the Court, and it is so 
ordered and done. Plaintiff, praying an appeal but no ex­
tension of time, is granted 15 days to make and serve case- 
made defendants to have 3 days thereafter to suggest 
amendments, same to be settled and signed upon 3 days 
notice in writing by either party.

Of the Records of Cleveland County, State of Oklahoma, 
in District Court. Civil Appearance Docket No. 24, Page 
273.

26

[fol. 50] In the District Court of Cleveland County, 
State of Oklahoma

[Title omitted]

Order Overruling M otion for New Trial— July 24, 1946

Now on this 12th day of July, 1946, there comes on before 
me, by agreement of the parties, the hearing on the plain­
tiff’s motion for new trial in the above entitled cause. Upon 
consideration of the same, the court is of the opinion that 
the motion should be overruled.

It is, therefore, ordered, adjudged, and decreed that 
the motion for new trial filed by the plaintiff herein be, and 
the same is, hereby overruled, to which the plaintiff excepts 
and which exception is allowed.
[fol. 51] Thereupon, plaintiff gives notice in open court 
of her intentions to appeal to the Supreme Court of the 
State of Oklahoma and asks that such intentions be noted 
upon the minutes, dockets, and journals of the court, and it 
is so ordered and done.

Plaintiff, praying an appeal, but no extension of time, is 
granted fifteen (15) days to make and serve case-made, the 
defendants to have three (3) days thereafter to suggest



27

amendments and the same to be settled and signed upon 
three (3) days notice in writing by either party.

(Signed) Ben T. Williams, District Judge.
[File endorsement omitted.]

[fob 52] I n District Court of Cleveland County

Minute E ntry re E xtension of T ime to Make and Serve
Case-Made

7-24-46— C/M : Plaintiff granted extension of 15 days to 
make and serve case-made, defendants to have 3 days there­
after to suggest amendments, same to be settled and signed 
upon 3 days notice in writing by either party.

Of the Records of Cleveland County, State of Oklahoma, 
in District Court. Civil Appearance Docket No. 24, Page 
273.

I n  the District Court of Cleveland County, State of
Oklahoma

[Title omitted]

Order E xtending T ime to Make and Serve Case-Made—
August 2, 1946

[fols. 53-54] Now on this the 24th day of July, 1946, the 
above styled and numbered cause came regularly on for 
hearing upon the oral application of the Plaintiff for an 
extension of time within which to prepare and serve the 
case-made herein, and it being shown to this Court that the 
Plaintiff has not had sufficient time under the prior order 
of this Court within which to prepare and serve the case- 
made in this case because the Court Reporter has been busy 
in actual court room work and work on case-mades ordered 
prior to the time the case-made herein was ordered, and has 
not had sufficient time to complete this case-made, this Court 
finds that an extension of time should be granted herein.

It is therefore hereby ordered, upon good cause being 
shown, that the plaintiff be, and he is hereby allowed fifteen 
(15) days time, in addition to the time heretofore allowed 
by prior order of this Court, within which to prepare and



28

serve the case-made in this case, and the defendants are al­
lowed three (3) days thereafter within which to suggest 
amendments to said case-made, and said case-made to be 
signed and settled upon three (3) days written notice by 
either party.

(Signed) Ben T. Williams, District Judge.
[File endorsement omitted.]

[fol. 55] In the District Court of Cleveland County, 
State of Oklahoma

No. 14,807

A da L ois Sipuel, Plaintiff,
vs.

B oard of Regents of the U niversity of Oklahoma, et al.,
Defendants

Journal E ntry— August 6,1946

This cause coming on to be heard on this the 9th day of 
July, 1946, pursuant to regular assignment for trial, the 
said plaintiff being present by her attorney, Amos T. Hall, 
and the said defendants by their attorneys, Fred Hansen, 
First Assistant Attorney General, and Maurice H. Merrill; 
and both parties announcing ready for trial and a jury 
being waived in open court, the court proceeded to hear the 
evidence in said case and the argument of counsel, said 
evidence being presented in the form of a signed “ Agreed 
Statement of Facts”  and a supplemental agreed statement 
of facts.

And the court, being fully advised, on consideration finds 
that the allegations of plaintiff’s petition are not supported 
by the evidence and the law, and the judgment is, therefore, 
rendered for the defendants, and it is adjudged that the de­
fendants go hence without day and that they recover their 
[fols. 56-57] costs from the plaintiff; to which findings and 
judgment plaintiff then and there excepted, and thereupon 
gave notice in open court of her intention to appeal to the 
Supreme Court of the State of Oklahoma, and asked that 
such intentions be noted upon the minutes, dockets and



29

journals of the Court and it is so ordered and done, and 
plaintiff praying an appeal is granted an extension of 15 
days in addition to the time allowed by Statute to make and 
serve case-made, defendants to have 3 days thereafter to 
suggest amendments thereto, same to be settled and signed 
upon 3 days notice in writing by either party.

(Signed) Ben T. Williams, District Judge.

O.K. (Signed) Fred Hansen, First Assistant Attorney 
General; Amos T. Hall, by F. H.

[File endorsement omitted.]

[fols. 58-61] Reporter’s Certificate to foregoing transcript 
omitted in printing.

[fol. 62] Clerk’s Certificate to foregoing transcript omit­
ted in printing.

[fol. 63] In the District Court of Cleveland County, 
State of Oklahoma

[Title omitted]

Service of Case-M ade

To the Above Named Defendants and Their Attorneys of 
Record:
The above and foregoing case-made is hereby tendered 

to and served upon you and each of you, as a true and 
correct case-made in the above entitled cause, and as a 
true and correct statement and complete transcript of all 
the pleadings, motions, orders, evidence, findings, judg­
ment and proceedings in the above entitled cause.

Dated this the 7th day of August, 1946.

Amos T. Hall, Attorneys for Plaintiff.



30

Acknowledgment of Service
I do hereby accept and acknowledge service of the above 

and foregoing case-made, this the 7th day of August, 1946. 
Mac Q. Williamson, Atty. Gen. of Okla; Fred Hansen, 

1st Asst. Atty. Gen. of Okla.; Maurice H. Merrill, 
Attorneys for Defendants.

[fol. 64] In the District Court of Cleveland County,
State of Oklahoma

[Title omitted]

Certificate of A ttorneys to Case-Made

We hereby certify that the foregoing case-made contains 
a full, true, correct and complete copy and transcript of all 
the proceedings in said cause, including all pleadings filed 
and proceedings had, all the evidence offered or introduced 
by both parties, all orders and rulings made and exceptions 
allowed, and all of the record upon which the judgment in 
said cause were made and entered, and that the same is a 
full, true, correct and complete case-made.

Witness our hands this 10th day of Aug., 1946. Amos 
T. Hall, Attorneys for Plaintiff.

[fol. 65] In the District Court of Cleveland County, 
State of Oklahoma

[Title omitted]

Stipulation of A ttorneys to Case-Made

It is hereby stipulated and agreed by and between the 
parties hereto that the foregoing case-made contains a 
full, true, correct and complete copy and transcript of all 
the proceedings in said cause, all pleadings filed and pro­
ceedings had, all the evidence offered and introduced, all 
objections of counsel, all the orders and rulings made and 
exceptions allowed and all of the record upon which the 
judgment in said cause were made; and the same is a full, 
true, correct and complete case-made; and the defendants



31

waive the right to suggest amendments to said ease-made 
and hereby consent that the same may be settled immedi­
ately and without notice, and hereby join in the request of 
the plaintiff that the Judge of said Court settle the same 
and order the same certified by the Court Clerk and filed 
according to law.

Dated this 7th day of August, 1945.
Amos T. Hill, Attorneys for Plaintiff; Mac Q. W il­

liamson, Atty. Gen. of Okla.; Fred Hansen, 1st 
Asst. Atty Gen. of Okla., Maurice H. Merrill, 
Attorneys for Defendants.

[fol. 66] In the District Court of Cleveland County,
State of Oklahoma

[Title omitted]

Certificate of Trial Judge to Case-Made

Be It Remembered, that on this the 13th day of August, 
1946, in the city of Norman, Cleveland County, Oklahoma, 
the above and foregoing case-made was presented to me, 
Ben T. Williams, regular Judge of the District Court of 
Cleveland County, State of Oklahoma, and before whom 
said cause was tried, to be settled and signed as the original 
case-made herein, as required by law, by the parties to said 
cause, and it appearing to me that said case-made has been 
duly made and served upon the defendants within the time 
fixed by the orders of this Court, and in the time and form 
provided by law; that the said defendants have waived 
notice of the time and place of presentation hereof, and the 
suggestion of amendments hereto, and said plaintiff is 
present by his Attorney of Record, Amos T. Hall, and the 
said case-made having been examined by me is true and 
correct and contains a true and correct statement and com­
plete transcript of all the pleadings, motions, orders, evi­
dence, findings, judgment and proceedings had in said cause.

I now therefore hereby allow, certify and sign the same 
as a true and correct case-made in said cause and hereby 
[fol. 67] direct that the Clerk of said Court shall attest the 
same with her name and the seal of said Court and file the



32

same of record as provided by law, to be thereafter with­
drawn and delivered to the plaintiff herein for filing in the 
Supreme Court of the State of Oklahoma.

Witness my hand at Norman, Cleveland County, State of 
Oklahoma, on the day and year above mentioned and set out.

Ben T. Williams, District Judge.

Attest: Dess Burke, Court Clerk, Cleveland County, Okla­
homa. (Seal.) ‘

[fol. 68] [File endorsement omitted]

I n  the Supbeme Court of the State of Oklahoma
No. 32756

A da Lois Sipuel, Plaintiff in Error,

vs.

Board of Regents of the U niversity of Oklahoma, George 
L. Cross, Maurice H. Merrill, George Wadsack, and R-oy 
Gittinger, Defendants in Error

Stipulation E xtending T ime to F ile Brief— Filed October 
'  18, 1946

It is hereby stipulated and agreed, by and between 
counsel for the plaintiff in error and the defendants in 
error, that the plaintiff in error may have 30 days from 
date hereof in which to file a brief in the above entitled 
appeal.

Amos T. Hall, Attorney for Plaintiff in E rror; Fred 
Hansen, 1st Asst. Atty. Gen., Attorney for Defend­
ants in Error.

[fol. 69]—No. 32756—Ada Lois Sipuel v. Board of Regents 
of University of Oklahoma, et al., Plaintiff in error granted 
until November 22, 1946, in which to file brief, as per stipu­
lation.

T. L. Gibson, Chief Justice.



33

[fol. 70] [File endorsement omitted]
In the Supreme Court of the State of Oklahoma

[Title omitted]

Stipulation Extending T ime to F ile Brief— Filed Novem­
ber 22, 1946

It is hereby stipulated and agreed, by and between counsel 
for the plaintiff in error and the defendants in error, that 
the plaintiff in error may have 15 days from date hereof 
in which to file a brief in the above entitled appeal.

Amos T. Hall, Attorney for Plaintiff in Error. 
Mac Q. Williamson, Atty. Gen.; Fred Hansen, 1st 
Asst. Atty. Gen., Attorney for Defendants in 
Error.

[fol. 71] The Clerk is hereby directed to enter the follow­
ing orders:

32756—Ada Lois Sipuel v. Board of Regents of the Uni­
versity of Oklahoma, et al. Plaintiff in error granted until 
December 7,1946 to file brief, per stipulation.

T. L. Gibson, Chief Justice.

[fol. 72] [File endorsement omitted]

I n  the Supreme Court of the State of Oklahoma 

[Title omitted]

Motion for Oral A rgument— Filed January 24, 1947

Comes now the plaintiff in error and respectfully moves 
the court to grant leave to submit oral argument in this 
cause, and in support thereof represents and shows to the 
court as follows:

1. This appeal presents questions of general and state­
wide interest and importance involving the constitution­
ality of the separate school laws of the State of Oklahoma.

2. The apeal in this case involves a novel question of 
general interest and importance which has not heretofore 
been decided by this court, to-wit:



34

The refusal of the Board of Regents and the adminis­
trative officers of the University of Oklahoma to admit 
[fol. 73] plaintiff in error to the School of Law consti­
tutes a denial of rights secured under the Fourteenth 
Amendment of the constitution of the United States.

3. The nature and affect of this appeal is such that a 
proper presentation of the questions involved warrants 
submission of oral argument.

Respectfully submitted, Amos T. Hall, Thurgood 
Marshall, Robert L. Carter, Attorneys for Plain­
tiff in error.

[fol. 74] [File endorsement omitted]

I n  the Supreme Court of the State of Oklahoma 

[Title omitted]

Motion to A dvance Cause—Filed January 24, 1947
Comes now said plaintiff in error and respectfully moves 

this Honorable Court to advance the above-entitled cause 
for early hearing, and in support thereof represents and 
shows as follows:

1. This is an action in mandamus wherein the plaintiff in 
error seeks to compel the Board of Regents of the Uni­
versity of Oklahoma to admit her into the Law School of 
said university, and the cause involves the refusal to 
[fol. 75] admit plaintiff in error to the said School of Law 
and as alleged by the plaintiff in error constitutes a denial 
of her constitutional rights.

2. The appeal herein has been pending in this court since 
August 17, 1946; that the legislature of the State of Okla­
homa is now in session and because of the nature of the 
action should be decided by this court while the legislature 
is still in session.

Amos T. Hall, Thurgood Marshall, Robert L. Carter, 
Attorneys for Plaintiff in Error.



35

[fol. 76] [File endorsement omitted]

I n  the Supreme Court of the State of Oklahoma 

[Title omitted]

Order A ssigning Case— February 6, 1947

For good cause sliown, it is hereby ordered that the above 
styled and numbered cause be assigned for oral argument 
on the docket for Tuesday, March 4, 1947, at 9:30 A.M. or 
as soon thereafter as same may be heard in regular order, 
and the Clerk is directed to notify the parties of such 
setting.

Thurman S. Hurst, Chief Justice.

[fol. 77] I n  the Supreme Court for the State of
Oklahoma

[Title omitted]

A rgument and Submission

March 4, 1947. J. E. Orally Argued and Submitted upon 
the Records and Briefs.

[fol. 78] [File endorsement omitted]

I n the Supreme Court of the State of Oklahoma 

No. 32756

A da Lois Sipuel, Plaintiff in Error,
vs.

Board of Regents of the U niversity of Oklahoma, George 
L. Cross, Maurice II. Merrill, George W adsack and Roy 
Gittinger, Defendants in Error

*

Opinion— Filed April 29,1947 

S y l l a b u s

1. It is the state’s policy, established by constitution and 
statutes, to segregate white and negro races for purpose



36

of education in common and high schools and also institu­
tions of higher education. (State ex rel. Bluford v. Can­
ada, 153 S. W. 2d 12.)

2. It is the State Supreme Court’s duty to maintain 
state’s policy of segregating white and negro races for 
purpose of education so long as it does not come in conflict 
with Federal Constitution. (State ex rel Bluford v. Canada, 
153 S. W. 2d 12.)

3. It is the State Supreme Court’s duty to follow United 
States Supreme Court’s interpretation of Federal Constitu­
tion. (State ex rel. Bluford v. Canada, 153 S. W. 2d 12.)

4. Upon demand or substantial notice it is the duty of the 
Board of Regents of Higher Education and the board of 
control for Langston University to provide negroes with 
equal facilities of instruction as those enjoyed by students 
of the University of Oklahoma, under statute, but the 
proper board is entitled to reasonable advance notice of the 
intention of negro students to require such facilities. (State 
v. Witham, 165 S. W. 2d 378.)

[fol. 79] 5. A negro student, citizen and resident of Okla­
homa, has the same right as a white student to be educated 
in Oklahoma in preference to education in out of state 
schools with tuition aid from Oklahoma, if desired, but when 
the latter plan has been in operation for a number of years 
a negro student preferring such education in the state 
should be required to make such preference definitely known 
to the proper authorities before such student may success­
fully claim adverse and unlawful discrimination in the lack 
of furnishing such educational facilities in Oklahoma.

6. The practice in Oklahoma of furnishing tuition aid to 
negro students for higher education in schools out side of 
Oklahoma does not amount to a full discharge of the state’s 
duty to its negro students, but when such practice is fol­
lowed for a long number of years and applied to many 
negro students, with apparent satisfaction to taxpayers and 
students of both races, it may demonstrate lack of intention 
to discriminate against negro students and may he accepted 
as the satisfactory policy of the state and as being free 
from discrimination until demand for such education within 
the state is made.



37

Appeal from the District Court of Cleveland County. Hon.
Ben T. Williams, Judge.
Action in mandamus by Ada Lois Sipuel against Board 

of Regents of University of Oklahoma, and president, reg­
istrar and two named deans of the University, to compel 
Negro petitioner’s admittance and enrollment in law school 
of the University of Oklahoma. From a judgment for de­
fendants, the petitioner appeals.

Affirmed.

[fol. 80] Amos T. Hall, Tulsa, Okla, Thurgood Mar­
shall and Robert L. Carter of New York, N. Y., for 
Plaintiff in Error.

Franklin H. Williams, of New York, N. Y., of Coun­
sel; Mac Q. Williamson, Attorney General, Fred 
Hansen, First Assistant Attorney General; Mau­
rice H. Merrill and John B. Cheadle, both of Nor­
man, Oklahoma, for Defendants in Error.

W elch, J .:
Petitioner Ada Lois Sipuel, a negro, sought admission 

to the law school of the State University at Norman. 
Though she presented sufficient scholastic attainment and 
was of good character, the authorities of the University 
denied her enrollment. They could not have done other­
wise for separate education has always been the policy of 
this state by vote of citizens of all races. See Constitution, 
Art. 13, Sec. 3, and numberous statutory provisions as to 
schools.

Since statehood, and for that matter in the two Territories 
prior to statehood, separate schools have been systemati­
cally maintained and regularly attended by and for the 
races respectively. This policy has been established and 
perpetuated, and these schools have been so instituted and 
maintained by voters and taxpayers and educators and pat­
rons of both races, as if for the greater good of both races 
[fol. 81] in Oklahoma. So that, without regard to distances, 
conveniences or desires, or any other consideration, a negro 
child or pupil may not enter a white school nor a white 
child or pupil enter a negro school.

It is a crime for the authorities of any white school to 
admit a negro pupil, likewise a crime for the authorities



38

of any negro school to admit a white pupil. 70 O.S. 1941, 
S6c. 455. And it is a crime for any teacher in either such 
school to give instruction therein to pupils of the other race. 
70 O.S. 1941, Sec. 456. The law school of the University 
is maintained for white students and therefore the author­
ities and instructors thereof could not have enrolled and 
taught petitioner therein lest they suffer the criminal 
penalty therefor.

Petitioner’s failure to obtain this enrollment was fol­
lowed by this action in mandamus, seeking to compel the 
school authorities to admit and instruct petitioner, notwith­
standing the force of the above laws. Serious questions 
arise as to the propriety of the remedy sought, but we 
prefer to discuss the merits of the rights claimed by 
petitioner.

There is no controversy as to the facts presented. Trial 
was had upon stipulation, not necessary to be copied herein 
at length, as parts relied upon will be discussed in order.

Petitioner contends that since no law school is maintained 
for negroes, she is entitled to enter the law school of the 
University, or if she is denied that, she will be discriminated 
against on account of race contrary to the 14tli Amendment 
[fol. 82] to the United States Constitution. This is specious 
reasoning, for of course if any person, white or negro, is 
unlawfully discriminated against on account of race, the 
Federal Constitution is thereby violated. But in this claim 
for University admission petitioner takes no account, or 
does not take fair account, of the separate school policy of 
the State as above set out.

That it is the state’s duty to furnish equal facilities to 
the races goes without saying. The record would indicate 
the state has fully done so as to the lower grades, the high 
school, and as to general university training. It is a 
matter of common knowledge that for the past fifty years, 
ten years in the Territory and forty years since statehood, 
Langston University, (as it is now named), hereafter re­
ferred to as “  Langston ’ ’ has been and is now maintained for 
separate higher education of negroes, with large sums 
appi’opriated therefor and thereto by the State Legislature 
at each session and large sums allocated thereto by the 
State Regents for Higher Education. Oklahoma Constitu­
tion, Art. XIII. A.

It is demonstrated by allegations of petitioner, and ad­
mission of answer and stipulation, that petitioner has in no



39

manner been discriminated against as to lower grades, liigb 
school and pre-law college instruction, for petitioner spe­
cifically claims that she has fully completed all scholastic 
work required for pre law and is therein as well qualified 
as any white student to study law. That is not controverted, 
but is admitted and it is clear that petitioner attained such 
[fol. 83] status in the separate schools of Oklahoma in­
cluding Langston.

Here we must notice the important point that it is not 
wholly clear whether petitioner seeks to overturn the com­
plete separate school policy of the state, or seeks to com­
pel equal facilities for the races by obtaining an extension 
of such facilities to include a separate law school for 
negroes. That point is made uncertain by the pleadings 
and brief of petitioner and by the stipulation. There is 
much to indicate petitioner does not assail and seek to 
destroy the entire separate school policy, and there is some 
statement to that effect by her or for her in the oral argu­
ment. But there is contradiction thereof in petitioner’s 
brief.

There is an assumption or a charge in respondent’s brief 
that petitioner does not desire the institution of a separate 
law school, does not desire to attend such a school, and 
would not attend same if it should be duly and adequately 
instituted. That assertion is not effectively or satisfac­
torily denied by petitioner since no reply brief was filed, 
the usual time for reply brief was allowed, and her position 
on the point is not made wholly clear in oral argument.

The authority of a state to maintain separate schools 
seems to be universally recognized by legal authorities. 
Missouri ex rel. Gaines v. Canada, 305 U. S. 337, 344, 83 
L. Ed. 208, — S. Ct. — ; Plessy v. Ferguson, 163 U. S. 537, 
544, 41 L. Ed. 256, 258, 16 S. Ct. 1138; McCabe v. Atchison 
T. & S. F. Ry. Co. 235, U. S. 151, 160, 59 L. Ed. 169, 173, 
35 S. Ct. 69; Gong Lum v. Rice, 275 U. S. 78, 85, 86, 72 
L. Ed. 172, 176, 177, 48 S. Ct. 91.
[fol. 84] In Bluford v. Canada, D. C. 32 F. Supp. 707, 710- 
711 (appeal dismissed 8 Cir. 119 F. 2nd 779) it was said:

“ The State has the constitutional right to furnish 
equal facilities in separate schools if it so desire. 
Plessy v. Ferguson, 163 IT. S. 537, 16 S. Ct. 1138, 41 
L. Ed. 256; McCabe v. Atchison, T. & S. F. Ry. Co., 235 
U. S. 151, 35 S. Ct. 69, 59 L. Ed. 169. Absent notice and



a reasonable opportunity to furnish facilities not there­
tofore requested, the state’s right to follow its estab­
lished policy is destroyed for reasons noted. Such a 
result should not be brought about absent an impelling 
necessity to secure to the citizen his or her constitu­
tional rights.

“ We may add that while all admit that the benefits 
and burdens of public taxation must be shared by citi­
zens without discrimination against any class on 
account of their race, the education of the people in 
schools maintained by state taxation is a matter belong­
ing to the respective states, and any interference on the 
part of Federal authority with the management of such 
schools cannot be justified except in the case of a clear 
and unmistakable disregard of rights secured by the 
supreme law of the land.”  Cummings v. Board of 
Education, 175 U. S. 528, loc. cit. 554, 20 S. Ct. 197, loc. 
cit. 201, 44 L. Ed. 262. -
[fol. 85] “ Furthermore, if plaintiff may maintain this 
action without alleging previous notice of her desire 
and opportunity for compliance, will on tomorrow the 
individual members of the Board of Curators of Lin­
coln University or the University of Missouri be liable 
in damages to another negro, if, perchance, late today 
he or she demands instruction at Lincoln University, 
for which facilities are lacking, and then in the morn­
ing demands admittance to the LTniversity of Missouri? 
Yet such would seem to be the result contended for by 
plaintiff unless the curators should maintain at Lincoln 
University at all times all departments of instruction, 
whether used or not, which are available at the Uni­
versity of Missouri. It does not appear that ‘ a clear 
and unmistakable disregard of rights secured by the 
supreme law of the land’ would result from a failure 
on the part of those curators to keep and maintain in 
idleness and non-use facilities at Lincoln University 
which no one had requested or indicated a desire to use.

“ Since the State has made provision for equal edu­
cational facilities for negroes and has placed the man­
datory duty upon designated authorities to provide 
those facilities, plaintiff may not complain that defend­
ant has deprived her of her constitutional rights until 
she has applied to the proper authorities for those



41

rights and has been unlawfully refused. She may not 
[fol. 86] anticipate such refusal. Highland Farms 
Dairy v. Agnes, 300 U. S. 608, loc. cit. 616, 617, 57 S. Ct. 
549, 81 L. Ed. 835. * * *”

We conclude from the over-all presentation that peti­
tioner does not attack the separate school policy of Okla­
homa, or if she does the attack by this method is wholly 
without merit.

It would seem that petitioner’s grievance is founded on 
the fact that the state has not established a law school for 
Negroes at Langston or elsewhere in the state, assuming a 
desire on her part to attend such separate law school if it 
existed.

In response to such a claim or asserted grievance the 
respondents assert petitioner has never made a demand for 
the establishment of a law school for negroes, and it is stipu­
lated no such demand has ever been made.

As we view the matter the state itself could place complete 
reliance upon the lack of a formal demand by petitioner. 
We do not doubt it would be the duty of the state, without 
any formal demand, to provide equal educational facilities 
for the races, to the fullest extent indicated by any desired 
patronage, whether by formal demand or otherwise. But 
it does seem that before the state could be accused of dis­
crimination for failure to institute a certain course of study 
for negroes, it should be shown there was some ready 
patronage therefor, or some one of the race desirous of such 
instruction. This might be shown by a formal demand, or 
by some character of notice, or by a condition so prevalent 
[fol. 87] as to charge the proper officials with notice thereof 
without any demand. Nothing of such kind is here shown. 
It is stated in oral argument by attorneys for petitioner that 
so far as this record shows petitioner is the first member 
of her race to seek or desire education in the law within the 
state, and upon examination we observe the record is blank 
on the point. That is not important as being controlling 
of petitioner’s individual rights, but it should be considered 
in deciding whether there is any actual or intentional dis­
crimination against petitioner or her race.

I f some specific course is now or should hereafter be 
offered to negroes in their University at Langston, but not 
at the same time made available in college courses for white



42

pupils, would the state be guilty of discrimination for not 
offering such a course to white pupils before it knew of any 
white pupils desiring such particular instruction? And in 
such a case would the remedy of a white pupil be to demand 
and seek to force entry into Langston to get such instruction, 
or to let be knowm his desire to have instruction in such 
course in the school maintained for his race?

The state Regents for Higher Education has undoubted 
authority to institute a law school for negroes at Langston. 
It would be the duty of that board to so act, not only upon 
formal demand, hut on any definite information that a mem­
ber of that race was available for such instruction and de­
sired the same. The fact that petitioner has made no 
[fol. 88] demand or complaint to that board, and has not 
even informed that board as to her desires, so far as this 
record shows, may lend some weight to the suggestion that 
petitioner is not available for and does not desire such 
instruction in a legal separate school.

If the state in fairness to all taxpayers, and in good faith, 
deferred the installation of a law school for negroes, with 
its attendant expense, till at least some need therefor oc­
curred, or was made manifest, it would hardly be fair for 
one of that race, refraining from demand or notice or in­
formation to that board, to take advantage of the situation 
then to choose a character of relief contrary to the lawful 
separate education policy of the state heretofore noticed.

Attention is called in the briefs to the fact that for a num­
ber of years the state, in lieu of a law school for negroes, 
has provided a fund whereby members of that race could 
attend law school outside the state, in law schools open to 
negroes, at expense of this state. Various members of that 
race have taken advantage of such opportunity, and several 
are now doing so. That plan does not necessarily discharge 
the state’s duty to its negro citizen. See Gaines v. Missouri, 
above cited. Negro citizens have an equal right to receive 
their law school training within the state if they prefer it. 
However, the above plan does not necessarily demonstrate 
a. discrimination against negroes. Financial consideration, 
the saving to taxpayers, is not controlling, but is important 
to both races.

With both races believing in and practicing the policy of 
separate schools, it is possible that both races, including 
taxpayers and pupils of both races, might prefer the plan of



43

[fol. 89] furnishing education in law to negroes in estab­
lished law schools outside the state, which are open to 
negroes, rather than the establishment of a separate law 
school in Oklahoma. It is certainly possible that negro 
pupils desiring to attend law school would prefer this pro­
vision for out of state study. If all negroes, qualified and 
desiring law school education, had such preference then 
they surely could not contend that such plan would dis­
criminate against them. That is, while the furnishing of 
such out of state education would not necessarily discharge 
the state’s obligation to negro citizens eligible to study law, 
since we have the policy of separate education which is a 
lawful policy, the furnishing of out of the state law educa­
tion to negroes would free the state from any charge of 
discrimination as long as both races preferred that plan to 
a separate law school in the state for negroes. Under these 
circumstances there is no more discrimination against 
negroes than there is in favor of negroes insofar as con­
cerns their receiving law education in law schools out side 
of the state.

If a white student desires education in law at an older 
law school out side the state he must fully pay his own way 
while a negro student from Oklahoma might be attending 
the same or another law school out side the state, but at the 
expense of this state.
[fol. 90] 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 expense in pref­
erence 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 circumstances 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 neigh­
bor white pupil rather than discriminated against in that 
particular.

While there is nothing in this record to show that this 
petitioner would prefer law education outside of the state 
under this plan, the record is equally blank as to any pref­
erence on her part for law instruction in a separate school in 
the state instead of such instruction outside the state, but at 
the expense of the state.



44

It seems clear to us that since our state policy of 
separate education is lawful, the petitioner may not enter 
the University Law Schools maintained for white pupils. 
Certainly she could not do so without a destruction of this 
state policy of separate education. She does not expressly 
claim any right to destroy this separate educational policy 
and under the facts shown, no such right would exist if she 
did claim it. It is equally certain, however, that petitioner 
is entitled to pursue her law studies and that without any 
unlawful discrimination against her. That is to say, she 
may not attend the law school for white pupils for that would 
be unlawful and would involve illegal acts by herself, the 
authorities of the school, the instructors therein and the 
white pupils therein, but for emphasis we repeat that this 
[fol. 91] does not change the fact that she is entitled at the 
expense of the state to pursue her studies in law and be 
educated therein. This she may do either in a separate law 
school to be established in the state, which as we have shown, 
may well be done and for which authority already exists, or 
if petitioner acquiesces in the plan she may have her 
education in law outside the state, but at the expense of 
this state.

As we have shown, for some years the state has followed 
the plan of financing out of state law education for negroes 
in place of a separate law school for negroes in the state. 
It is but fair to assume that such plan is both adequate and 
satisfactory if not preferable, to negroes, at least until 
some character of showing is made to the contrary.

The petitioner places reliance upon the decision of the 
Supreme Court of the United States in Missouri ex rel. 
Gaines v. Canada, 305 U. S. 337, 83, L. Ed. 208, but between 
that case and this there are various distinguishing features 
both of law and of fact.

In Missouri, Lincoln University maintained separately 
for negroes occupies a position similar to Langston Uni­
versity in Oklahoma. Gaines was a graduate of Lincoln 
University as petitioner was a graduate of Langston. When 
Gaines applied to the law school of the University of Mis­
souri maintained separately for white pupils his admission 
was denied, but he was advised to and did communicate with 
the authorities of Lincoln University. The opinion does 
not disclose the exact nature of his communication or ap­
plication to Lincoln University, but since Gaines was follow­



45

ing through on his application for and his efforts to obtain 
law school instruction in Missouri, we assume he applied to 
Lincoln University for instruction there in the law. The 
authorities then, instead of making provision for petitioner’s 
education in the law within the state, sought to discharge 
[fol. 92] the obligation of the state by tendering Gaines 
instruction in law out side the state. In the case at bar 
no such application or notice of any kind was given by peti­
tioner Sipuel to the authorities of Langston, or to the State 
Regents of Higher Education. Thus in Missouri there was 
application for and denial of that which could have been law­
fully furnished, that is, law education in a separate school, 
while in this case the only demand or request was for that 
which could not be lawfully granted, that was education of 
petitioner, a negro, in a white school. Had this petitioner 
made application or given notice to those in charge of 
Langston they had authority and it would have been their 
duty to provide for her an opportunity for education in law 
at Langston or elsewhere in Oklahoma.

As to distinguishing points in law we observe that in 
Oklahoma, hut not in Missouri, there are specific statutes 
prohibiting education of whites and negroes together and 
that a crime would be committed in Oklahoma, but not in 
Missouri, if whites and negroes were taught together, and 
apparently in Missouri, but not in Oklahoma, the authorities 
of the University for negroes have, or at that time had, a 
discretion to either provide educational facilities for negroes 
in Missouri or require negroes ready for higher education 
to attend schools out side the state. Also that in Missouri, 
the constitution provided for separate public schools, but 
contained no express provision for race separation for the 
purpose of higher education. Furthermore, in Missouri 
the out of state education was restricted to states adjacent 
to Missouri, while, as heretofore pointed out, such out of 
state education provided for Oklahoma negroes is not so 
restricted, the negro pupil here has complete freedom of 
choice, and it is a matter of common knowledge that Okla- 
[fol. 93] homa negro students have attended schools in 
more than twenty states extending from New York to Cali­
fornia, and including the Nation’s Capitol.

This freedom of choice supplying in Oklahoma and this 
wider use of our out of state privilege is not to be taken 
as a complete discharge of the state’s obligation to negro



46

pupils in higher education, but it is important in considering 
whether this plan might not be more desirable to all negroes 
than the maintaining of separate schools for their respec­
tive courses in Oklahoma, and might tend to justify the 
conclusion that such plan was and is wholly satisfactory to 
all negroes affected, until and unless there should be con­
trary showing or indication by demand or request or notice 
to the authorities in charge of higher education for negroes. 
This all leads to the conclusion that petitioner here could 
and should have presented some application or notice or 
information to those authorities as did the petitioner Gaines 
in Missouri.

The decision in the Gaines case seems to have resulted 
from the failure and refusal of the proper authorities to 
make provision for the separate education of petitioner in 
law in Missouri, after specific demand or application there­
for, or at least the failure so to do after the authorities in 
charge of the school for higher education of negroes had 
specific notice that petitioner Gaines was prepared and 
available and therefore there existed a need and at least one 
patron for a law school for negroes.

The conclusion of the court in the Gaines case is stated 
in these words near the end of the opinion:

“  * * * 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 State.”

[fol. 94] There, as here, the petitioner could have no 
personal complaint as to the failure years ago to provide 
a law school for negroes long before petitioner was ready 
for such a course. So the “ absence * * * of provision
for his legal training in the State”  noticed in the Gaines case 
must have been the failure to provide same for him, Gaines, 
when he was ready for it and made known his desire and his 
availability. This he did when he made application to 
Lincoln University as above observed, but this the peti­
tioner Sipuel wholly failed to do.

Therefore there was not the same failure to provide as to 
petitioner Sipuel in Oklahoma as there was a failure to 
provide as to petitioner Gaines in Missouri. We are con­
sidering here not the political or economic question of the 
failure generally in years gone by to provide a law school



47

for negroes. We are considering the question of the legal 
rights of petitioner herself to have such provision made for 
her, and, certainly, as to an individual and his or her 
rights, the court should not adjudge a failure to provide 
until there is some demand or notice or knowledge of desire 
and availability on the part of that individual. Apparently 
petitioner Gaines in Missouri was seeking first that to which 
lie was entitled under the laws of Missouri, that is, education 
in law in a separate school. Here petitioner Sipuel ap­
parently made no effort to seek in law in a separate school, 
but instead sought only that to which she was not entitled 
under the law, that is, education in law7 in the school sepa­
rately provided for white students.

Since there vTas not here the same failure to provide as 
in the Gaines case, for lack of opportunity here to furnish 
provision in compliance with a request or expressed desire 
[fol. 95] therefor, as existed in the Gaines case, w7e do not 
believe that the rule of the Gaines case is fully applicable 
here. 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 ad­
mit petitioner to the University Law School. But the very 
existence of the option to do the one or the other imports 
the right or an opportunity to choose the one of the two 
courses wdiieh will follow7 the fixed policy of the state as 
to separate schools, and before the courts should foreclose 
the option the opportunity to exercise it should be ac­
corded. That opportunity which was afforded by Gaines 
by his acts, w7as denied by petitioner Sipuel here. The 
effect of her actions was to withhold or refrain from 
giving to the proper officials, the right or option or op­
portunity to provide separate education in law for her, 
as instead she proceeded immediately to offer herself for 
enrollment in the University Law School for white students, 
and to insist upon that as her rightful remedy.

In State v. Witham, 165 S. W. (2d) 378, the Supreme 
Court of Tennessee held:

“ Upon demand it is the duty of the hoard of education 
to provide negroes with equal facilities of instruction 
as those enjoyed by students of University of Tennes­
see, under statute, hut the board is entitled to reason­
able advance notice of their intention to require such 
facilities.”



48

That same philosophy was applied by the Federal Court in 
Bluford v. Canada, supra, as shown in part by the previous 
quotation from that opinion. We quote further therefrom 
as follows:

“ The petition does not allege any demand by plaintiff 
or any other negro for instruction in journalism at 
Lincoln University, nor does the petition allege that 
the governing body of Lincoln University had ample 
time to furnish those facilities after plaintiff first 
sought admission to the University of Missouri. The 
omission is not inadvertent. On oral argument counsel, 
with complete frankness, stated plaintiff’s position to 
[fol. 96] be that although plaintiff should be the first 
to request the desired instruction she is entitled to it 
at the University of Missouri instanter, if it be now 
furnished there to white students and is not immedi­
ately available at Lincoln University. If her position 
is well taken to allegation of advance notice to the 
authorities of Lincoln University of her desire for 
the instruction demanded is necessary. On the other 
hand, if the State be entitled to an opportunity to fur­
nish the instruction at Lincoln University before it 
or its administrative officers (such as the defendant), 
be convicted of violation of the equal protection clause, 
then the petition should be amended or defendant’s 
motion sustained. ’ ’

Then after discussion of the matter, including the reason­
ing first copied from this opinion, the court held the dis­
missal order would be sustained unless the amendment to 
petition should be made, thus fully approving the rule that 
the state is entitled to notice and an opportunity to furnish 
proper separate schools education before one may claim 
a denial amounting to a discrimination.

In State ex rel. Bluford v. Canada, 153 S. W. (2d) 12, 
the Supreme Court of Missouri held:

“ A demand by negro on board of curators of state’s 
university for negroes to open journalism department 
and such board’s refusal to do so within reasonable 
time are prerequisites to issuance of writ of mandamus 
compelling state university registrar to admit such 
negro as student in state university school of journal­
ism.”



49

In the body of the opinion of that case it was said:
“ It is the duty of this court to maintain Missouri’s 
policy of segregation so long as it does not come in con­
flict with the Federal constitution. It is also our duty 
to follow the interpretation placed on the Federal Con­
stitution by the Supreme Court of the United States. 
The Supreme Court has many times approved the policy 
of segregation. Mr. Chief Justice Hughes, citing au­
thorities, again approved the policy in the Gaines case, 
provided substantially equal facilities for colored per­
sons he furnished within the State. Since that opinion, 
Missouri, by legislative enactment, has ordered that 
equal facilities be provided within her borders and 
has designated the Board of Lincoln University as the 
proper authority to furnish such facilities. The duty 
of the Lincoln Board to open new departments on 
proper demands is not mandatory. True, the Board 
cannot operate without funds. If its funds are insuf­
ficient to provide all courses taught at Missouri Uni­
versity, the Board shall allocate its funds to the courses 
most needed. But that very fact entitled the Board 
to have a demand made upon it before being required 
to open a new department, for surely the Board is 
[fol. 97] not required to maintain departments for 
which there are no students. We think also that the 
Board is entitled to a reasonable time in which to open 
a new department after demand is made. If, upon 
proper demand, the Lincoln Board had refused to es­
tablish a course in journalism within a reasonable time, 
or had informed appellant that it was unable to do so, 
appellant would have been entitled to admission to that 
course in the Missouri University.”

And further in the opinion it was said:
“  * * * Here, because of the lack of a previous
demand on Lincoln University, appellant was not en­
titled to admission to Missouri University at the time 
of her application. * * * ”

In petitioner’s brief it is said:
“ The Constitution and laws of the United States and 
State of Oklahoma require that equal facilities he 
afforded all citizens of the State. The duty of making



50

such equal provisions was delegated to the Board of 
Regents of Higher Education. This duty is incumbent 
upon the Board hy virtue of their office. It was not 
necessary, therefore, that the plaintiff-in-error make 
a prior demand upon this Board to perform its lawful 
duty before she may request mandamus to obtain her 
lawful right to a legal education.
“ It is axiomatic that the law will not require an indi­
vidual to do a vain and fruitless act before relief from 
a wrong will he granted. * * * ”

It is then said by way of argument that any demand by 
petitioner would have been fruitless and vain. It is pointed 
out that the Regents of Higher Education had knowledge 
of this civil action after it was filed and that they met and 
considered “ the questions involved”  in the court action, 
but took no steps toward the setting up or operation of a law 
school for negroes in Oklahoma. There is a three-fold 
answer to this argument. First, the petitioner had no 
right at all to anticipate refusal or denial of her demand, 
and, two, the petitioner has not as yet indicated her desire 
or willingness to attend a separate law school for negroes 
in Oklahoma, and third, “ the questions involved”  in this 
court action embraced only the claimed right of petitioner 
to enter Oklahoma University.

The above quoted statement from petitioner’s brief, how- 
[fol. 98] ever, does demonstrate acquiesence in the theory 
that in Oklahoma it is the fixed duty of the Board to make 
provisions for higher education of negroes, different from 
the mere discretion to do so as was noticed in the Gaines 
case and relied upon to support the conclusion there reached.

The Constitution of the United States is the Supreme 
Law of the land. It effectively prohibits discrimination 
against any race and all state officials are sworn to sup­
port, obey and defend it. When we realize that and con­
sider the provisions 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 man­
datory duty to provide a separate law school for negroes 
upon demand or substantial notice as to patronage there­
for.



51

We conclude that petitioner is fully entitled to education 
in law with facilities equal to those for white students, hut 
that the separate education policy of Oklahoma is lawful 
and is not intended to be discriminatory in fact, and is not 
discriminatory against plaintiff in law for the reasons above 
shown. We conclude further 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. We con­
clude further that while petitioner may exercise here 
preference between those two educational plans, she must 
indicate that preference by demand or in some manner 
[fol. 99] that may be depended upon, and we conclude that 
such requirement for notice 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 Okla­
homa University Law School, and that such right does 
not exist for the reasons hei'etofore stated. We hold that 
this conclusion works not unlawful discrimination against 
petitioner, that she has not brought herself within the rule 
of the Gaines case, and has wholly failed to establish any 
violation of the Fourteenth Amendment of the Federal Con­
stitution.

The judgment of the trial court denying mandamus is 
affirmed.

[fol. 100] [File endorsement omitted]

I n  the Supreme Court of the State of Oklahoma 

[Title omitted]

Order Correcting Opinion— June 5, 1947

Now on this 5 day of June, 1947, it is ordered that the 
opinion filed herein on April 29th, 1947, be and the same is 
hereby corrected in the following particulars to-wit:

On page 4 or sheet 4 in the first line of the last paragraph 
after the word “ could”  and before the word “ place”  
there is inserted the word “ not”  so that the sentence affected 
will read as follows to-wit: “ As we view the matter the state



52

itself could not place complete reliance upon the lack of a 
formal demand by petitioner.”

Done by order of the court in conference this 5 day of 
June, 1947.

Thurman S. Hurst, Chief Justice.

[ fo l . 1 0 1 ]  I n  the Supreme Court of the State of
Oklahoma

[Title omitted]

Note re Mandate

May 15, 1947 Mandate Issued 
May 17, 1947 Receipt for Mandate

[fol. 102] [File endorsement omitted]

I n  the Supreme Court of the State of Oklahoma 

[Title omitted]

A pplication for Leave to F ile Petition for Rehearing

Leave is hereby granted to file this 2nd day of June, 1947, 
Thurman S. Hurst, Chief Justice.

Comes now the plaintiff-in-error, and respectfully shows 
the court that heretofore, to-wit: on the 29th day of April, 
1947, a judgment and decision of this court was rendered 
affirming the judgment of the District Court of Cleveland 
County in favor of defendants in error and against plaintiff- 
in-error; that the chief counsel for the plaintiff-in-error re­
side in New York City and was not sent a copy of the 
[fol. 103] opinion in the case; that only a copy to the under­
signed was sent, and the chief counsel of the plaintiff-in-er­
ror were out of their New York office and did not receive a 
copy of the opinion within the time prescribed by the rules of 
this court, in which a petition-in-error might be filed, and 
therefore no petition-in-error was filed within the fifteen day 
period as provided by rule 28 of this court.



53

That the plaintiff-in-error desires and requests leave of 
the court to file a petition-in-error which is in the course 
of preparation, and seriously desires to urge the same.

Wherefore, plaintiff-in-error prays the court for leave to 
file a petition-in-error within fifteen day- from date hereof. 

Respectfully submitted, Amos T. Hall, Thurgood 
Marshall, Robert L. Carter, Attorneys for Plaintiff- 
in-error.

State of Oklahoma,
County of Tulsa, ss:

Amos T. Hall, of lawful age, being first duly sworn on 
oath, states:
[fol. 104] That he mailed a copy of the foregoing applica­
tion to Mr. Fred Hansen, First Assistant Attorney General, 
State Capitol, Oklahoma City, on the 26th day of May, 1947, 
in an envelope properly addressed and with the postage 
thereon fully paid.

Amos T. Hall.

Subscribed and sworn to before me this 26th day of 
May, 1947. Henry Mae Lovejoy, Notary Public. 
My Commission expires October 30, 1950. (Seal.)

[fol. 105] [File endorsement omitted]

Ik the Supreme Court of the State of Oklahoma 

[Title omitted]

Order

Order Recalling Mandate and E xtending T ime to F ile 
Petition for Rehearing—June 3, 1947

For good cause shown, it is hereby ordered tliat the 
mandate issued in the above styled and numbered cause be, 
and the same is hereby recalled, and the plaintiff in error 
granted until June 12, 1947 to file petition for rehearing 
herein.

Done by order of the Court in Conference this 3rd day 
of June, 1947.

Thurman S. Hurst, Chief Justice.



54

[fol. 106] [Pile endorsement omitted]

I n  the Supreme Court op the State of Oklahoma 

[Title omitted]

Petition for Rehearing— Filed June 12, 1947

To the Honorable the Presiding Judge and Associate 
Judges of the Supreme Court of the State of Oklahoma:
Now comes plaintiff-in-error, Ada Lois Sipuel, in due 

time after filing of the opinion in the above-entitled case, 
and petitions the Court to grant plaintiff-in-error a rehear­
ing on the grounds that questions decisive in the case and 
fully submitted by counsel in brief and arguments have 
been overlooked by the Court; that the opinion of the Court 
is unclear and apparently contradictory; and, that the 
decision violates the U. S. Constitution, the Fourteenth 
Amendment thereto and laws of the United States, and that 
it is in conflict with the controlling decisions of the United 
States Supreme Court.

[fol. 107] I

T he Opinion of the Court is U nclear and A pparently 
Contradictory and in Conflict W ith Controlling 
Decisions of the U nited States Supreme Court

A. Court Failed To Decide Questions Raised by Plaintiff - 
in-Error.

This Court, speaking through Welch, J., in its opinion 
stated in part:

“  . . . It is not wholly clear whether petitioner
seeks to overturn the complete separate school policy 
of the State, or seeks to compel equal facilities for the 
races by obtaining an extension of such facilities to 
include a separate law school for Negroes. . . There
is much to indicate petitioner does not assail and seek 
to destroy the entire separate school policy . .

Plaintiff-in-error has consistently contended that since 
the State of Oklahoma has made provision for the legal 
education of its white citizens within the State, its failure 
to provide equal opportunity for Negro citizens violates



55

the Fourteenth Amendment to the United States Constitu­
tion. The United States Supreme Court in discussing a 
similar situation said in Missouri Ex rel. Gaines v. Canada, 
305 U. S. 337, at 349:

‘ ‘ The white resident is afforded legal education within 
the State; the Negro resident having the same quali­
fications is refused it there and must go outside the 
State to obtain it. That is a denial of the equality of 
[fol. 108] legal right to enjoyment of the privilege which 
the State has set up, and the provision for the payment 
of tuition fees in another State does not remove the 
discrimination.”

Her contention is clear (see: brief for plaintiff-in-error, 
Argument I, A. B. C. (1), (2) and D). Oklahoma having 
made no provision for her legal education as required by 
the Fourteenth Amendment and the interpretation placed 
thereon by the U. S. Supreme Court (Gaines v. Canada, 
(supra)), she must of necessity be admitted into the 
only law school provided by the State.

In her brief submitted to this Court, plaintiff-in-error 
stated in part:

“ Despite the line of cases in support of the ‘ separate 
but equal’ theory, this Court is under an obligation to 
reexamine the rule and the reasons on which it is 
based in the light of present day circumstances and to 
adopt and apply a rule which conforms with the require­
ments of our fundamental law.”

This the Court has not done, and its failure to do so, it is 
felt, justifies a rehearing so that the issues can be squarely 
presented and clearly decided.

B. T he Court A pparently Based I ts Decision U pon an 
I ncorrect A nalysis of the F acts and H olding in the Case 
of Gaines v. Canada.

[fol. 109] Plaintiff-in-error contended in her brief sub­
mitted to this Court and in oral argument that the case of 
Gaines v. Canada, (supra), and the principles established 
therein were controlling. This Court erred in attempting to 
distinguish the two cases. The opinion herein stated in 
part:

. . We assume he (Gaines) applied to Lincoln
University for instruction in the law . . . Thus in



56

Missouri there was application for and denial of that 
which could have been lawfully furnished, that is, law 
education in a separate school . .

The assumption made by the Court was incorrect for the 
only demand or request made by the plaintiff in the Gaines 
case was for admission into the law school of the Uni­
versity of Missouri—the same demand as made herein— 
placing the facts of the two cases squarely on all fours with 
one another. (See: Transcript of Record, Gaines v. Canada, 
Supreme Court of the United States, October Term, 1938, 
No. 57, Relator’s Exhibits, Pp. 61-71). Gaines at no time, as 
assumed by this Court, applied to Lincoln University for 
instruction in the law. (See: Separate Opinion, Mr. Jus­
tice McReynolds)

“ Q. Now you never at any time made an application 
to Lincoln University or its Curators or its officers 
or any representative for any of the rights . . ., either 
to receive a legal education at a school to be established 
[fol. 110] in Lincoln University or, . . . ?

“ A. No, sir.”  (Transcript, Gaines (supra) p. 85)

From the above it is obvious that the facts in this case 
and the Gaines case are exactly the same.

The attempted distinction between the laws of Missouri 
and those of Oklahoma are considered by plaintiff-in-error 
irrelevant, for if the Constitution of the United States 
requires that a state treat its citizens in a particular man­
ner, no state statute penalizing one violating such a law 
could be operative.

The Court’s opinion herein states in part:
“ The decision in the Gaines case seems to have re­

sulted from the failure and refusal of the proper 
authorities to make provision for the separate educa­
tion of petitioner in law in Missouri after specific de­
mand or application therefor, or at least the failure so 
to do after the authorities in charge of the school for 
higher education of Negroes had specific notice that 
petitioner Gaines was prepared and available and there­
fore there existed a need and at least one patron for a 
law school for Negroes.”

In view of the clarification above of the facts in the Gaines 
case, this statement is equally applicable to the instant



57

situation. The same demand or application made by Gaines 
has been made by plaintiff-in-error. The State of Oklahoma 
herein, as the State of Missouri in the Gaines case, has 
failed to provide for the legal education of plaintiff-in- 
[fol. I l l ]  error at any place within the state. The holding 
of the Games case quoted by this opinion:

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

should have been the holding herein.
The opinion of this Court throughout apparently hinges 

upon this misconception of the facts in the Gaines case, and 
with a knowledge that the facts therein were the same as ob­
tain herein, plaintiff believes that its decision would have 
been different, for it states in part:

“ Since there was not here the same failure to pro­
vide as in the Gaines case . . . we do not believe that 
the rule of the Gaines case if fully applicable here. ’ ’

C. T he Opinion of T his Court A pparently Contains 
Patent Contradictions Requiring a Rehearing and Clari­
fication.

In the Court’s opinion at one point it is stated:
“ . . . the State itself could place complete re­

liance upon the lack of a formal demand by petitioner.”

The sentence immediately following is to the effect that:
[fol. 112] “ We do not doubt it would be the duty 
of the State, without any formal demand, to provide 
equal educational facilities for the races, to the fullest 
extent indicated by an- desired patronage, whether by 
formal demand or otherwise.”

Subsequently it is stated:
“ This might be shown by a formal demand, or by 

some character of notice, or by a condition so prev­
alent as to charge the proper officials with notice 
thereof without any demand.”



58

From this it would appear that in the one case the Court 
holds that a formal demand by plaintiff-in-error for the 
establishment of a separate law school would be requisite 
for the issuance of mandamus herein. It would also ap­
pear from these statements that a formal demand would not 
necessarily be requisite if “ knowledge or notice”  of a 
need or desire for the legal education of a Negro citizen 
were to be brought to the attention of the State in some 
manner.

Though it has been the contention of plaintiff-in-error 
throughout that the duty to provide facilities for her legal 
education rested upon the State and the officials thereof 
by virtue of their office and that no formal demand therefor 
[fol. 113] is necessary the opinion herein does not make 
clear whether formal demand is required or not. Certainly 
“ some character of notice”  that a Negro citizen desired 
a legal education within the State has been brought to the 
State by virtue of this action. Further, plaintiff’s appli­
cation for admission to the University of Oklahoma Law 
School brought to the attention of the State that some 
member of the Negro race desired ‘ ‘ such instructions. ’ ’ Ac­
cordingly, for the reason that the opinion of this Court is 
unclear appears contradictory, plaintiff-in-error respect­
fully requests a rehearing and clarification of the Court’s 
opinion.

D. T he Decision in the Gaines Case is Controlling
H erein

The facts obtaining in the case of Gaines v. Canada, 
(supra) are so similar to the facts obtaining herein as 
to defy differentiation. The public policy of the State of 
Missouri, as in Oklahoma, established by statute, that 
segregation of the races in educational institutions was 
requisite. The State of Missouri, as in Oklahoma, made 
provision for the education of Negro citizens in the law at 
out-of-state universities. The Court ’s opinion herein would 
seem to indicate that it considers out-of-state scholarships 
for Negroes “ adequate and satisfactory.”  That such a 
system is a violative of the Fourteenth Amendment has been 
too clearly decided to warrant lengthy decisions.

[fol. 114] “ The basic consideration is not as to what
sort of opportunities other States provide, or whether



59

they are as good as those in Missouri, hut as to what 
opportunities Missouri itself furnishes to white students 
and denies to Negroes solely upon the grounds of color 
. . . petitioner was entitled to be admitted to the
law school of the state university in the absence of 
other and proper provisions for his legal training 
within the State.”  (Gaines v. Canada, supra)

Distinguishing between the instant case and the Gaines 
case would be impossible. The rule announced by the 
Supreme Court in the said case is applicable herein. Ac­
cordingly, the decision of the lower court reversed.

II

Decision V iolates U. S. Constitution

That distinctions by states on the basis of race and 
color are forbidden under our Constitution is too clear 
and too well-settled to warrant discussion herein. Strauder 
v. Virginia, 100 U. S. 303 (1879), Slaughter House Cases, 
16 Wall. (U. S.) 36 (1873), Exparte Virginia, 100 U. S. 339 
(1879).
[fol. 115] There is no dispute in this case that provision is 
made by the state of Oklahoma for the legal education of its 
citizens. White students desiring such apply, and if quali­
fied, are immediately admitted into the law school of the 
state university. Negro students desiring such education, 
however, must, according to the opinion herein, acquiesce 
in accepting scholarship aid to attend out-of-state universi­
ties or make some form of demand upon the “ proper of­
ficials”  for the establishment of a segregated law school 
at Langston University.

That the first alternative offered Negro students is 
unequal was clearly settled by the case of Gaines v. Canada, 
(supra). That the second alternative cannot be considered 
equal is clear when it is recognized that such requires of 
Negro students an added burden not required of white 
students.

The equality of treatment required by the Constitution 
is to be measured as of the time the citizen desires such 
treatment. Mitchell v. U. S., 313 U. S. 80 (1941), McCabe v. 
Atchison, T. & S. F. R. Co., 235 U. S., 151 (1914). No pro­
vision for a separate school had been made at the time



60

plaintiff-in-error applied to the University of Oklahoma 
nor has any been made since that time. No funds have 
been made available for such a school, and therefore even 
had plaintiff-in-error demanded its establishment, her educa­
tion would have been necessarily interrupted and delayed 
by virtue of the non-existence of a law school at the state 
[fol. 116] university for Negroes. Demand, therefore, would 
obviously be an idle ceremony and accordingly cannot be 
required for the issuance of mandamus herein.

Even if the language of the instant opinion to the effect 
that some form of notice must be brought to the proper 
officials were to be followed, the decision of the lower court 
should be reversed. Such notice has been brought to the 
state and therefore to all of its agents. In the first in­
stance, the State received notice by virtue of plaintiff-in­
error’s application to the University of Oklahoma. Notice 
was again received by the State through the institution of 
this suit. Nothing has since been done to indicate that 
the State of Oklahoma has any intention of making provi­
sion for plaintiff-in-error’s legal education within the State 
according to the mandate of the Fourteenth Amendment and 
the interpretations placed thereon by the United States and 
amendments thereto.

All of which is respectfully submitted this 12 day of 
June, 1947.

Amos T. Hall, Tulsa, Oklahoma; Thurgood Marshall, 
Robert L. Carter, New York, New York; Attor­
neys for Plaintiff-in-Error.

Franklin H. Williams, New York, New York, of Coun­
sel.

Receipt of a copy of the above instrument on this, the 12th 
day of June 1947, is hereby acknowledged.

Fred Hansen, 1st Asst. Atty. Gen.



61

[fol. 117] [File endorsement omitted]

I n  the Supreme Court of the State of Oklahoma

Order Denying Petition for Rehearing— June 24, 1947

The Clerk is hereby directed to enter the following orders: 
32756— Ada Lois Sipuel v. Board of Regents of the Uni­

versity of Oklahoma et al. Petition for rehearing is 
denied.

Thurman S. Hurst, Chief Justice.

/ ----------

[fol. 118] In the Supreme Court of the State of Oklahoma

[Title omitted]

Note re Mandate

July 3, 1947—Mandate Issued.
July 8, 1947—Receipt for Mandate.

[fol. 119] Clerk’s Certificate to foregoing transcript 
omitted in printing.

[fol. 120] Supreme Court of the U nited States

Order A llowing Certiorari—Filed November 10, 1947
The petition herein for a writ of certiorari to the Supreme 

Court of the State of Oklahoma is granted.
And it is further ordered that the duly certified copy of 

the transcript of the proceedings below which accompanied 
the petition shall be treated as though filed in response to 
such writ.

(3437)