Ex Parte Gene Mitchell Gray Brief for Petitioners

    ujinw  ( ta r t  ni tip Mniteft States
October T erm, 1951

No. 159 Misc.

IN THE

EX PAETE GENE MITCHELL GEAY, LINCOLN 
ANDERSON BLAKENEY, JOSEPH HUTCH 

PATTERSON a n d  JACK ALEXANDEE,
Petitioners.

On P etition fob W rit of Mandamus

BRIEF FOR PETITIONERS

B obert L. Carter,
Carl A. Cowan,
T hurgood Marshall, 

Counsel for Petitioners.

Z. Alexander L ooby,
Avon N. W illiams, J r.,

Of Counsel.

J u d ic ia l  P r in t in g  Co., in c ., 82 Beekman St., N. Y.— BEekman 3-9084-5-6 182



I N D E X

PAGE

Opinions Below.............................................................  1
Jurisdiction ....................................................................  2
Statement of the Case...................................................  3
Error Relied On..............................................................  6
Summary of Argument.................................................. 6
Argument ........................................................................ 8

I— This cause is one in which a three-judge court
has jurisdiction ......................................    8

II— If Review is not available on direct appeal
mandamus will lie to require the Court below to 
assume jurisdiction ................................................ 10

Conclusion.......................................................................  12

Cases Cited

Bd. of Supervisors, La. State University v. Wilson,
340 U. S. 9 0 9 ..:.........................................................  8

Berea College v. Kentucky, 211 IJ. S. 45....................  8
Burford v. Sun Oil Co., 319 U. S. 315....... .................  10
Chicago v. Fieldcrest Dairies, Inc., 316 U. S. 168........  10
Ex parte Bradstreet, 32 U. S. 64, 8 L. ed. 577.............  12
Ex parte Bransford, 310 U. S. 354, 355......................  10
Ex parte Collins, 277 U. S. 565....... ............................  10
Ex parte Fahey, 332 U. S. 258, 260................................. 12
Ex parte Hobbs, 280 U. S. 168....................................... 9
Ex parte Metropolitan Water Co., 220 U. S. 5 3 9 ..... 10
Ex parte Northern Pacific Ry. Co., 280 U. S. 142........ 10
Ex parte Poresky, 290 U. S. 30....................................  10
Ex parte Public Nat’l Bank, 278 U. S. 101................  11
Ex parte Simmons, 247 U. S. 231, 239.......................... 12
Ex parte Skinner & Eddy Corp., 265 U. S. 86............. 12



11 I N D E X

PAGE

Ex parte United States, 287 U. S. 241.......................... 12
Ex parte United States, 319 U. S. 730.......................... 12
Ex parte Williams, 277 U. S. 267...................................  10
Gong Lnm v. Bice, 275 U. S. 78..................................... 8
Gully v. Interstate Natural Gas Co., 292 U. S. 16.........  10
In re Buder, 271 U. S. 461...................................... . 10
International Garment Workers Union v. Donnelly 

Garment Co., 304 U. S. 243........................................  9
Jameson & Co. v. Morgenthau, 307 U. S. 171.............. 10
Kentucky v. Powers, 201 U. S. 1...................................  12
McCabe v. A. T. & S. P. By. Co., 235 U. S. 151.........  8
McCullough Tool Co. v. Cosgrove, 309 U. S. 634.......  12
McLaurin v. Board of Begents, 339 U. S. 637...............8,10
Missouri ex rel. Gaines v. Canada, 305 U. S. 337.........  8, 9
Moore v. Fidelity & Deposit Co., 272 U. S. 317............. 9
Oklahoma Gas & Electric Co. v. Oklahoma Packing

Co., 292 U. S. 386.......................................................9,10
Oklahoma Natural Gas Co. v. Bussell, 261 U. S. 290.. . 10
Osage Tribe of Indians v. Ickes, 45 E. Supp. 179, 186,

187 (D. D. C. 1942)............................................. 11
Phillips v. United States, 312 U. S. 246................ 9
Plessy v. Ferguson, 163 U. S. 537.................................  8
Public Service Commission of Missouri v. Brashear 

Freight Lines, Inc., 312 U. S. 621.............................  10
Boche v. Evaporated Milk Ass’n, 319 U. S. 21, 32... 12
Sipuel v. Board of Begents, 332 U. S. 631....................  8
Smith v. Wilson, 273 U. S. 388......... ............................  9
Spector Motor Service v. McLaughlin, 323 U. S. 101. . 10
Stratton v. St. Louis S. W. By. Co., 282 U. S. 10......... 9,10
Sweatt v. Painter, 339 U. S. 629..................................... 8
Virginia v. Paul, 148 U. S. 107.
Virginia v. Bives, 100 U. S. 313

12
11



I N D E X 111

Statutes Cited
p a g e

Tennessee Code, Sections 11395, 11396, 11397. . .2, 4, 5, 6, 8 
Tennessee Constitution, Article 11, Section 12.. .2, 4, 5, 6, 8
United States Code, Title 28, Sections 1651(a) and 1253 2
United States Code, Title 28, Sections 2281 and 2284. .1, 5, 8
United States Constitution, Fourteenth Amendment. .2,5, 8

Treatise

Bowen, When are Three Federal Judges Enquired 
(1931), 16 Minn. L. Rev. 1, 39-42................ ............ Un



IN  THE

B n p x m x x  (Hour! of %  Mxxxtxb States
O ctober T e r m , 1951

No. 159 Misc.
--------------  —  » — ■ --------------

Ex P arte Gene Mitchell Gray, L incoln A nderson 
Blakeney, J oseph H utch P atterson 

and J ack Alexander,
Petitioners.

BRIEF FOR PETITIONERS

Opinions Below

After notice and hearing, the statutory three-judge 
District Court for the Eastern District of Tennessee con­
vened pursuant to Title 28, United States Code, Section 
2281 disclaimed jurisdiction and remanded the cause for 
proceedings before the District Judge in the District peti­
tioners had filed their complaint. An opinion setting forth 
the reasons for their action was filed on April 13, 1951. 
It appears at pages 35-40 of the record and is not officially 
reported.1 District Judge T aylor, without further hear­
ing or notice to the parties, on April 20, 1951, filed an 
opinion in which he found that; petitioners had been denied 
the equal protection of the laws, but refused to grant in­
junctive relief. The cause was retained “ for such orders

1 All record citations are to the record filed in the appeal phase of these 
proceedings, now pending before this Court as Case #120.



2

as may be proper when it appears that the appropriate law 
has been finally declared.” His opinion is reported in 97 
F. Snpp. 463 and may be found at pages 40-47 of the 
record.

Jurisdiction

Jurisdiction of this Court is invoked under Title 28, 
United States Code, Section 1651(a) since the ordinary 
remedy of appeal and certiorari may be unavailable and in­
adequate, and petitioners’ right to take an appeal in this 
case, pursuant to Title 28, United States Code, Section 
1253 is beclouded with doubt.

Petitioners made application in the court below for a 
preliminary and permanent injunction to restrain the en­
forcement of certain constitutional and statutory pro­
visions of the State of Tennessee, and a December 4, 
1950 order of the Board of Trustees of the University 
of Tennessee, on the grounds that these aforesaid pro­
visions and order deny to petitioners the equal protection 
of the laws as secured by the Fourteenth Amendment to 
the Constitution of the United States (R. 1-20). In its 
answer, the state defended its refusal to admit petitioners 
to the University of Tennessee on the grounds that it had 
no other recourse under Article 11, Section 12 of the Con­
stitution and under Sections 11395, 11396 and 11397 of the 
Code of Tennessee (R. 25-27). Thus, the issue of the con­
stitutionality of the order of an administrative agency and 
of the laws of the State of Tennessee were squarely in 
issue in these proceedings, and since injunctive relief is 
sought, determination by a three judge court is made man­
datory under federal statutes.



3

Statement of the Case

Petitioners, having met all lawful requirements, made 
due and timely application for admission to the graduate 
school and the law school of the University of Tennessee. 
Gene Mitchell Gray sought permission to enroll in the 
graduate school commencing in the fall quarter of 1950, 
and Jack Alexander desired approval of his application 
for enrollment in the graduate school beginning in the win­
ter quarter of 1951. Both Lincoln Anderson Blakeney and 
Joseph Hutch Patterson desired to enroll in the first-year 
class of the law school in the winter quarter of 1951 (E. 9).

The University of Tennessee is the only state institution 
offering the courses petitioners desire to pursue, and they 
would have been admitted except for the fact that they are 
Negroes (E. 6). On December 4, 1950, the Board of 
Trustees of the University of Tennessee met and denied 
petitioners’ application solely because of their color (E. 
14). Its action was embodied in the following formal 
order:

“ Whereas, the Constitution and the Statutes of 
the State of Tennessee expressly provide that there 
shall be segregation in the education of the races in 
schools and colleges in the State and that a viola­
tion of the laws of the State in this regard subjects 
the violator to prosecution, conviction, and punish­
ment as therein provided; and,

“ Whereas, this Board is bound by the Consti­
tutional provision and acts referred to;

“ Be it therefore resolved, that the applications 
by members of the Negro race for admission as 
students into The University of Tennessee be and 
the same are hereby denied” (E. 14).

The applicable constitutional and statutory provisions 
on which this order was based are:



4

Article 11, Section 12 of Constitution of Tennessee:
” . . . And the fund called the common school 

fund, and all the lands and proceeds thereof . . . 
heretofore by law appropriated by the General As­
sembly of this State for the use of common schools, 
and all such as shall hereafter be appropriated, shall 
remain a perpetual fund, . . . and the interest thereof 
shall be inviolably appropriated to the support and 
encouragement of common schools throughout the 
State, and for the equal benefit of all the people 
thereof. . . .  No school established or aided under 
this section shall allow white and negro children 
to be received as scholars together in the same 
school. . . . ”
Section 11395 of the Code of Tennessee:

“ . • . It shall be unlawful for any school, acad­
emy, college, or other place of learning to allow 
white and colored persons to attend the same school, 
academy, college, or other place of learning.”
Section 11396 of the Code:

“ . . . It shall be unlawful for any teacher, pro­
fessor, or educator in any college, academy, or school 
of learning, to allow the white and colored races to 
attend the same school, or for any teacher or edu­
cator or other person to instruct or teach both the 
white and colored races in the same class, school, or 
colleg-e building, or in any other place or places of 
learning, or allow or permit the same to be done with 
their knowledge, consent or procurement.”

and
Section 11397 of the Code:

” . . .  Any person violating any of the provisions 
of this article, shall be guilty of misdemeanor, and, 
upon conviction, shall be fined for each offense fifty 
dollars, and imprisonment not less than thirty days 
nor more than six months.”



5

Petitioners thereupon filed a complaint on January 12, 
1951, in the court below, in the nature of a class suit in 
which application was made for both a preliminary and 
permanent injunction seeking to restrain the enforcement 
of the December 4 order of the Board of Trustees, and 
Article 11, Section 12 of the Constitution and Sections 
11395, 11396 and 11397 of the Code of Tennessee on the 
grounds that the aforesaid provisions and order under 
attack deprived petitioners of rights secured under the 
Fourteenth Amendment to the Constitution of the United 
States (R. 1-20).

On February 1, 1951, the state filed its answer, in which 
no material allegations in petitioners’ complaint was con­
troverted and in which the denial of petitioners’ admission 
to the University of Tennessee wTas defended on the grounds 
that such denial was required by its constitution and stat­
utes (R. 25-27).

On February 12,1951, petitioners filed a motion for judg­
ment on the pleadings (R. 28). The court below, which had 
been convened pursuant to Title 28, United States Code, 
Sections 2281 and 2284 (R. 28-29) held a hearing in Knox­
ville, Tennessee, on March 13, 1951, and on April 13, 1951, 
handed down an opinion in which jurisdiction was dis­
claimed; the three-judge court was ordered dissolved; and 
the cause remanded to District Judge Robert Taylor, in 
whose District the complaint had been fded, for further 
proceedings (R. 35-40).

On April 20, 1951, Judge Taylor held that the state’s 
refusal to admit petitioners to the University of Tennessee 
constituted a denial of the equal protection of the laws but 
refused to issue any affirmative order in enforcement of 
petitioners’ rights (R. 40-47). The cause was brought here 
on direct appeal. Since the right to direct appeal is in 
doubt and may be inappropriate, petitioners filed a motion 
for leave to file a petition for writ of mandamus to secure



6

the issuance of a mandatory writ from this Court directing 
the three judge court to reconvene and to make a final de­
termination in this cause. The motion was granted on Octo­
ber 15, 1951, and a rule to show cause issued. Response to 
the rule was made and on December 3, 1951, this Court 
ordered argument on this phase of the case.

E rro r R elied O n

T h e  c o u r t b e lo w  e r re d  in  re fu s in g  to  e x e rc ise  its  ju r is ­
d ic tio n  w h ich  h a d  b een  p ro p e r ly  in v o k ed  p u rs u a n t to  th e  
re q u ire m e n ts  o f T itle  28, U n ited  S ta te s  C ode, S ections 2281 
a n d  2284.

Sum m ary of A rgum ent

Petitioners are here seeking the issuance of a writ of 
mandamus to require the specially constituted United States 
District Court for the Eastern District of Tennessee, con­
sisting of the Hon. Shackelford Miller, Jr., Judge, United 
States Court of Appeals for the Sixth Circuit, L eslie R. 
Dabr, and R obert L. Taylor, Judges, United States District 
Court for the Eastern District of Tennessee to reconvene 
in order to finally determine petitioners’ right to a tempo­
rary and a permanent injunction as applied for in their 
complaint.

Petitioners sought injunctive relief in the court below 
against enforcement of a statewide policy, as evidenced in 
the December 4th order of the Board of Trustees of the 
University of Tennessee, Article 11, Section 12 of Constitu­
tion and Sections 11395, 11396 and 11397 of the Code of Ten­
nessee, all of which prohibit the admission of Negroes to 
the graduate and professional schools of the University 
of Tennessee. Because of the nature of the case a hearing 
and determination by a three judge court was mandatory.



7

If a single judge had refused to convene a three judge 
court, it is settled that petitioners’ proper recourse was 
to apply for writ of mandamus in this Court.

Here, however, a three judge court was properly 
convened, and after notice and hearing held on March 13, 
1951, the court declared itself to he without jurisdiction and 
issued an order dissolving the statutory court and remanded 
the cause for further proceedings before District Judge 
Eobert Taylor. Such proceedings subsequently took place 
in accordance wTith this order. The order remanding the 
cause to Judge Taylor, sitting alone, could not confer juris­
diction which he did not possess. Only a three-judge dis­
trict court has jurisdiction to hear and determine peti­
tioners’ cause.

This petition has been filed as an alternative remedy in 
the event the appeal now pending is held to be procedurally 
improper. "Where review by appeal is unavailable, man­
damus will lie to require a lower federal court to exercise 
jurisdiction in a proper case. In this case, if the order dis­
solving the three-judge court cannot be reviewed on ap­
peal, a writ of mandamus should issue directing the three 
judges who signed the order to reconvene and render a 
final decision in this case.



8

ARGUMENT

I

This cause is one in which a three-judge court has 
jurisdiction.

A preliminary and a permanent injunction to restrain 
the enforcement of the December 4th, order of the Board 
of Trustees, refusing to admit petitioners to the University 
of Tennessee pursuant to Article II, section 12 of the Con­
stitution of the State and Sections 11395, 11396 and 11397 
of the Code of Tennessee are here being sought on the 
grounds that the order, constitutional provision and stat­
utes deprive petitioners of their right to equal educational 
opportunities as secured under the equal protection clause 
of the Fourteenth Amendment to the Constitution of the 
United States. The University officials are state officers, 
Missouri ex rel. Gaines v. Canada, 305 U. S. 337; and the 
Board of Trustees of the University of Tennessee is an 
administrative board within the meaning of Title 28, 
United States Code, Sections 2281 and 2284. McLaurin 
v. Board of Regents, 339 U. S. 637; Board of Supervisors, 
La. State University v. Wilson, 340 U. S. 909. Petitioners’ 
claim that the state has deprived them of the equal pro­
tection of the laws presents a substantial federal question. 
Sweatt v. Painter, 339 U. S. 629; Sipuel v. Board of 
Regents, 332 U. S. 631.

The court below stated that state legislation requiring 
segregation was not unconstitutional because of the feature 
of segregation. In support of this proposition, Plessy v. 
Ferguson, 163 U. S. 537; McCabe v. A. T. & S. F. Ry. Co., 
235 U. S. 151; Berea College v. Kentucky, 211 U. S. 45; and 
Gong Lum v. Rice, 275 U. S. 78 were cited. It is alleged that 
Sweatt v. Painter, supra, did not change this rule. It sought 
to redefine the issues raised by describing them as allega­
tion of unjust discrimination under the equal protection



9

clause rather than of the constitutionality of state segrega­
tion statutes (R. 39-40). What we take the court to mean is 
that in the light of these decisions, petitioners’ claim that 
the denial of their admission to the University of Tennessee, 
pursuant to the state’s policy requiring the segregation of 
the races in all phases of its educational system including 
professional and graduate education, is unconstitutional has 
been foreclosed, and that hence that claim does not present 
a substantial federal question. Even assuming arguendo 
the correctness of the court’s view, we fail to see how it 
affects petitioners’ right to have their applications for in­
junctive relief heard and determined by a three judge court. 
At the very least those cases stand for the proposition that 
enforced racial segregation is permissible under the Con­
stitution as long as the facilities provided Negroes are 
equal to those available to white persons. This is the con­
dition which must be satisfied if segregation laws are to be 
held constitutional under the separate but equal doctrine. 
Ergo, where that condition has not been met such statutes 
are necessarily invalid. Certainly where the record shows 
that: (1) the University of Tennessee is the only state in­
stitution offering the courses petitioners desire to pursue; 
(2) that they have been denied admission thereto solely 
because of their race, pursuant to state policy; and (3) that 
petitioners seek to enjoin enforcement of that policy on the 
grounds that it conflicts with the federal constitution, a sub­
stantial claim of unconstitutionality has been made. See 
Missouri ex rel. Gaines v. Canada, supra.

We contend that all the ingredients essential to the 
jurisdiction of a three judge federal court have been met. 
See Stratton v. St. Louis S. W. Ry. Co., 282 U. S. 10; Smith 
v. Wilson, 273 U. S. 388; Moore v. Fidelity & Deposit Co., 
272 U. S. 317; International Garment Workers Union v. 
Donnelly Garment Co., 304 IT. S. 243; Ex parte Hobbs, 280 
U. S. 168; Phillips v. United States, 312 U. S. 246; Okla­
homa Gas & Electric Co. v. Oklahoma Packing Co., 292



10

U. S. 386; Ex parte Poresky, 290 U. S. 30; In re Buder, 
271 U. S. 461; Oklahoma Natural Gas Co. v. Russell, 261 
U. S. 290. While equity jurisdiction may be withheld in 
the public interest in exercise of sound discretion, see Spec- 
tor Motor Service v. McLaughlin, 323 IT. S. 101; Chicago r. 
Fielderest Dairies, Inc., 316 IT. S. 168; Burford v. Sun Oil 
Co., 319 IT. S. 315, the public interest in this case demands 
that the chancellor exercise his power. See McLaurin v. 
Board of Regents, supra. Jurisdiction of a three judge 
district court was properly invoked, and the court below 
was in error in refusing to decide this case.

II

If review is not available on direct appeal man­
damus will lie to require the court below to assume 
jurisdiction.

It is clear that where a single judge refuses to convene 
a three judge court, this Court may issue writ of man­
damus directing him to do so. Stratton v. St. Louis S. W. 
Ry. Co., supra at page 16; Ex parte Collins, 277 IT. S. 565, 
566; Ex parte Bramsford, 310 U. S. 354, 355; Ex parte 
Metropolitan Water Co., 220 IT. S. 539; Ex parte Williams, 
277 IT. S. 267; Ex parte Northern Pacific Ry. Co., 280 IT. S. 
142. Under such circumstance mandamus is the only ap­
propriate procedural remedy, since direct appeal to this 
Court lies only from a decision by a properly convened 
three judge court. Oklahoma Gas d  Electric Co. v. Okla­
homa Packing Co., supra; Jameson & Co. v. Morgenthau, 
307 U. S. 171; Public Service Commission of Missouri v. 
Brashear Freight Lines, Inc., 312 U. S. 621; Gully v. Inter­
state Natural Gas Co., 292 U. S. 16. Of course, the pro­
ceedings of District Judge T aylor subsequent to the 
order dissolving the three judge court are without effect, 
and he could be required to again convene a three judge



11

court. That would be an indirect method of indicating to 
the court belowr that it must assume jurisdiction of this 
cause. The vice, which petitioners seek to correct, how­
ever, concerns the refusal of the three judge court which 
had been properly convened to exercise jurisdiction which, 
we submit, it clearly possessed. We take the position that 
the order dissolving the court is appealable in that it was 
an effective denial of petitioners’ application for injunc­
tive relief. A judgment of dismissal or an express denial 
of injunctive relief, however, may be considered essential 
for this Court to have jurisdiction on appeal. In that 
event, we submit, mandamus will lie.

The only decision by this Court, which counsel for 
petitioners have found, on all fours with this case is Ex 
parte Public Nat’l Bank, 278 U. S. 101. In that case peti­
tioners sought to invoke the jurisdiction of a three-judge 
court. That court disclaimed jurisdiction, dissolved the 
court and ordered the cause to proceed before a single 
district judge on the ground that the requirements essen­
tial to a three-judge court had not been met. Motion for 
leave to file a petition for writ of mandamus to compel 
the reassembling of the court of three judges was granted 
by this Court, and a rule to show cause issued. After 
hearing and argument the rule was discharged, this Court 
finding that petitioners’ cause did not require determina­
tion by a three-judge court. Accord, Osage Tribe of In­
dians v. I  ekes, 45 F. Supp. 179, 186, 187 (D. D. C. 1942). 
In that case, however, no attempt was made to invoke the 
jurisdiction of this Court on appeal and that phase of 
the problem was not considered.2

Mandamus will lie where this Court finds that appeal 
may be unavailable or inadequate. Virginia v. Rives, 100

2 For a discussion of the procedural problems incident to this ease, See 
Bowen, When are Three Federal Judges Required (1931), 16 Minn. L. Rev. 1, 
39-42. The author favors mandamus rather than direct appeal as proper 
procedural remedy in a situation of this nature.



12

U. 8. 313; Kentucky v. Powers, 201 U. S. 1; Virginia v. 
Paul, 148 TJ. S. 107; Ex parte Skinner & Eddy Corp., 265 
U . S. 86; Ex parte Simmons, 247 U. S. 231, 239; Ex parte 
Fahey, 332 U. S. 258, 260. It is used in appropriate cases 
in aid of this Court’s supervisory power over lower fed­
eral courts. McCullough Tool Co. v. Cosgrove, 309 TJ. S. 
634; Ex parte United States, 287 U . S. 241. Improper as­
sumption or refusal or jurisdiction on a lower federal 
court may be reached by this writ. Ex parte United States, 
supra, 287 U. S. 241; Ex parte Skinner & Eddy Corp., supra; 
Ex parte Bradstreet, 32 U . S. 64, 8 L. ed. 577; Roche v. 
Evaporated Milk A ss’n, 319 U. S. 21, 32; Ex parte United 
States, 319 U. S. 730. Thus, in this case, if this Court 
finds it does not have jurisdiction on appeal, a writ of 
mandamus may appropriately be issued to compel the 
three-judge court below to reassemble and determine 
whether petitioner is entitled to the injunctive relief 
prayed for in her complaint.

Conclusion

For these reasons, it is respectfully submitted that a 
writ of mandamus should issue to compel the court below 
to reassemble as a specially constituted three-judge federal 
court and finally decide whether petitioners are entitled 
to injunctive relief in the event this Court holds that 
petitioners cannot have the order of the court below re­
viewed on direct appeal.

R obert L. Carter,
Carl, A. Cowan,
T hurgood Marshall, 

Counsel for Petitioners.

Z. A lexander L ooby,
Avon N. W illiams, J r.,

Of Counsel.

(4582)