Pearson v. Murray Appellee's Brief

    R aymond  A. P earson. Presi­
dent, W, M. H irregeist, 
Registrar, and George M. 
S hriver, J ohn  M. D en n is , 
W irriam  P. Core, H enry  
H orzapeer, J ohn  E . R aine , 
Dr. W . W . S k in n er , M rs. 
J ohn  L. W h itehurst  and 
J. M i r  t  o n  P atterson, 
Members o f  the B oard oe 
R egents oe th e  U niver­
sity  oe M aryrand,

vs.

D onard G. M urray , Other­
wise D onard G aines M u r­
ray .

I n T he

Court of Appeals
O e M aryrand.

O ctober T erm , 1935.

G enerar D ocket N o. 53.

APPELLEE’S BRIEF.

THURGOOD MARSHALL, 
CHARLES H. HOUSTON, 
WILLIAM I. GOSNELL,

Attorneys for Appellee.

The Daily Record Co., Print, Baltimore.



TABLE OF AUTHORITIES 
Acts of Maryland:

P age

Acts of 1807, Chap. 53................................................ 10
Acts of 1812, Chap. 15A................................ ............  11
Act of August 30, 1890................................................ 11
Acts of 1912, Chap. 90................................................9,13
Acts of 1920, Chap. 480.............................................. U
Acts of 1933, Chap 234 ............. .................... 9,14, 21, 22
Acts of 1935, Chap. 577........................................6, 21, 25

Board of Education v. Tinnon, 26 Kans. 1, 39 L. R.
A. 1020 ......................................................................... 15

Chase v. Stephenson, 71 111. 383, 385 ..........................  16
Clark v. Board of Trustees, 24 Iowa 266................. 15
Clark v. Maryland Institute, 87 Md. 643.......11,19, 30, 32
Cooley on Torts (Perm. Ed.) sec. 236 ........................  12
Corey v. Carter, 48 Ind. 327 .......................................... 12
Cornell v. Gray, 33 Okla. 591........................................ 15
11 C. J. Civil Rights, sec. 10, p. 805 ............................  12
Crawford v. District School Board, 68 Or. 388, 137 

Pac. 217 ....................................................................... 15
Ex parte Virginia, 100 U. S. 339, 346 ........................  20
Foltz v. Hoge, 54 Cal. 28 ................................................ 15
Gong Lum v. Rice, 275 U. S. 78, 84 ............................  28
Lowery v. Board of Trustees, 52 S. E. 267................. 19
Maddox v. Neal, 45 Ark, 121, 124 ..............................  16
McCabe v. Atchison, Topeka & Santa Fe Ry. Co.,

235 U. S. 151, 160.......................................................  30



11

P age

Patterson v. Board of Education, 11 N. J. Mi sc. 179 17
People ex rel. Bibb v. Mayor, 193 111. 309, 61 N. E.

1077, 56 L. R. A. 9 5 ........ ................................... 15,19, 29
Piper v. Big Pine School District, 193 Cal. 664...12,19, 29
5 Ruling Case Law 596, sec. 2 0 .... ................................ 12
Smith v. Independent School District, 40 Iowa 518...  19
State ex rel. Weaver v. Board of Trustees of Ohio 

State University, 126 Ohio St. 290, 185 N. E. 196... 17
State v. Duffy, 7 Nev. 342, 8 Am. R. 713...................12,19
State v. White, 82 Ind. 278 ............................................ 15
Tape v. Hurley, 66 Cal. 473, 6 P. 129............................  15
II. S. v. Buntin, 10 Fed. 730 (C. C. Ohio) .................12, 29
Ward v. Flood, 48 Cal. 36, 17 Am. R. 405.......... 12,19, 29
Whitford v. Board of Commissioners, 74 S. E. 1014... 13
Williams v. Bradford, 158 N. C. 36, 73 S. E. 154.....  12
Woolridge v. Board of Education, 157 Pac. 1184.....  19



R aymond  A. P earson, Presi- 
dent, W. M. H illegeist, 
Registrar, and George M. 
S hriver, J ohn  M. D en n is , 
W illiam  P. Cole, H enry 
H olzapfel, J ohn  E . R aine , 
D r . W. W. S k in n er , M rs. 
J ohn  L. W h itehurst  and 
J . M i l t o n  P atterson, 
Members o f  the B oard of 
R egents of th e  U niver­
sity of M aryland ,

vs.

D onald G. M urray, Other­
wise D onald Gaines M ur­
ray .

In T he

Court of Appeals
Of M aryland .

O ctober T erm , 1935.

G eneral D ocket No. 53.

APPELLEE’S BRIEF.

STATEMENT OF THE NATURE OF THE CASE.
This is an appeal by Raymond A. Pearson, President 

of the University of Maryland; W. M. Hillegeist, Regis­
trar of the Baltimore Schools of the University, and 
George M. Shriver et al., constituting the Board of 
Regents of the University, from an order of the Balti­
more City Court entered the 25th day of June, 1935, 
granting a Writ of Mandamus, and ordering the above 
named appellants to admit Donald G. Murray, appellee, 
as a first year student in the Day School of the School of



2

Law of the University of Maryland for the academic year 
beginning September 25, 1935, upon his paying the neces­
sary fee charged first year students in the Day School 
of the School of Law of the University of Maryland, and 
completing his registration in the manner required of 
qualified and accepted students in the first year class of 
the Day School of the School of Law of the University of 
Maryland, to wit, that he be not excluded on the ground 
of race or color (B. 41-42).

The trial Court rendered no formal opinion.

QUESTIONS FOR DECISION.
Question No. 1.

Whether the refusal of the appellants to admit appel­
lee, a qualified student, to the first year class of the day 
school of the School of Law of the University of Mary­
land solely on account of his race or color was in violation 
of the Constitution and laws of the State of Maryland.

The trial court held that appellants had violated the 
Constitution and laws of the State of Maryland in refus­
ing to admit appellee to the School of Law of the Uni­
versity of Maryland solely on account of his race or 
color.

Appellee contends that there is no statutory authority 
for excluding him from the School of Law of the Univer­
sity of Maryland solely on account of his race or color; 
that in the absence of statutory authority the attempted 
administrative regulation by the executive officers and 
agents of the University of Maryland and by the Board 
of Eegents excluding appellee from the School of Law 
of the University of Maryland solely on account of his



3

race or color is void; and that appellants having conceded 
of record that appellee was qualified from an educational 
standpoint to be admitted into the Day School of the 
School of Law of the University of Maryland (R. 44), 
and basing their refusal to admit him solely on account of 
his race or color (R. 18-22), the trial court was correct 
in issuing the writ of mandamus herein.

Question No. 2.
Whether appellants’ attempt to exclude appellee, a. 

qualified student, from the day school of the School of 
Law of the University of Maryland solely on account of 
race or color was a denial to him of the equal protection 
of the laws within the meaning of the Fourteenth Amend­
ment to the Constitution of the United States.

The trial court held that appellants could not exclude 
appellee from the School of Law of the University of 
Maryland solely on account of his race or color.

Appellee contends that the acts of the executive officers 
and agents of the University of Maryland, and the Board 
of Regents, in attempting to exclude appellee, a qualified 
student, from the School of Law of the University of 
Maryland was state action within the meaning of the 
Fourteenth Amendment to the Constitution of the United 
States; that the State of Maryland having established a 
state university supported in part from public funds and 
under public control, appellee, if otherwise qualified, 
could not be excluded therefrom solely on account of his 
race or color; that the State of Maryland has provided 
appellee no equivalent in opportunities for legal educa­
tion equal to the opportunities and advantages offered 
him in the School of Law of the University of Maryland;



4

and that the attempt by appellants to exclude him from 
the School of Law of the University of Maryland solely 
on account of his race or color in the absence of equal 
opportunities and advantages in legal education other­
wise furnished him by the State of Maryland is a denial 
to him of the equal protection of the laws within the 
meaning of the Fourteenth Amendment to the Constitu­
tion of the United States.

STATEMENT OF FACTS.
Appellee, Donald G-. Murray, a Negro citizen of the 

State of Maryland and a resident of the City of Balti­
more, on January 24, 1935, made application in due form 
for admission as a first year student in the Day School 
of the School of Law of the University of Maryland (B. 
6, 18). His application was rejected by the appellant 
President of the University and the appellant Begistrar 
solely on account of his race (B. 30-32). He appealed 
from this ruling to the appellants, the Board of Begents 
of the University (B. 32-33), who ratified the rejection 
(B. 60-61).

Murray is a graduate of Amherst College with the 
degree of Bachelor of Arts conferred upon him in 1934 
after successful completion of a four-year residence 
course (B. 6). Appellants stipulated that he was educa­
tionally qualified to enter the Day School of the School 
of Law of the University of Maryland (B. 44).

The University of Maryland is an administrative de­
partment of the State of Maryland, performing an essen­
tial governmental function and supported in part out of 
funds derived from taxes collected from the citizens of 
the State (B. 4, 17). The powers of governing the Uni­



5

versity are by law vested in the Board of Regents; the 
President and Registrar of the University act as agents 
of the Board. The charter of the University provides 
that it shall be maintained “ upon the most liberal plan, 
for the benefit of students of every country and every 
foreign denomination”  (R. 4).

Under its charter the University conducts in the City 
of Baltimore a School of Law as an integral component 
part of the University. The School operates in two divi­
sions: a day school and an evening school, having the 
same entrance requirements, to wit, the completion of at 
least one-half of the work acceptable for a Bachelor’s de­
gree granted on the basis of a four-year period of study 
by the University of Maryland or a principal college or 
university in the State (R. 5). The School of Law of the 
University of Marlyand is the only State institution 
which affords a legal education to Maryland citizens, and 
is the only law school in Maryland approved by the Amer­
ican Bar Association and a member of the Association of 
American Law Schools (R. 5, 18, 54).

All racial groups except Negroes, if otherwise quali­
fied, are admitted to the University. Resident Negro 
citizens are excluded; non-resident whites, Filipinos, In­
dians, Mexicans, Chinese, et al., are admitted (R. 54-59).

When Murray applied for admission to the School of 
Law he was advised that the University of Maryland 
did not accept Negro students except at Princess Anne 
Academy, the so-called Eastern Branch of the University 
of Maryland (R. 30-32). No instruction in law is offered 
at Princess Anne Academy (R. 47). Murray was further 
referred to Chapter 34 of the Acts of 1933 which pur­



6

ported to create scholarships for Negro students who de­
sired to take professional courses or other work not 
given at Princess Anne Academy (R. 21, 31). No money 
was ever appropriated or allocated for scholarships under 
said Act of 1933, nor was any scholarship under it ever 
awarded (R. 62-65).

Ten thousand dollars were appropriated for Negro 
scholarships under Chapter 577 of the Acts of 1935, ap­
proved April 29, 1935 (R. 20, 109). The administration 
of the Act was placed in the hands of a specially created 
Maryland Commission on Higher Education of Negroes. 
The administrative interpretation of the Act was that 
the scholarships provided covered tuition only (R. 112); 
and there were so many applications for scholarships 
that the Commission was not in position to satisfy all 
qualified applicants (R. 110-111).

Murray does not want an out-of-state scholarship (R. 
48). He desires to attend the School of Law of the Uni­
versity of Maryland in Baltimore where he is at home 
and room and board cost him nothing (R. 45, 50). The 
nearest out-of-state law school with a general standing 
comparable to that of the School of Law of the University 
of Maryland, which he could attend, is the Howard Uni­
versity School of Law in Washington, D. C. To attend 
this School Murray would be put to the expense of com­
muting daily from Baltimore to Washington and return, 
with attendant loss of time; or of paying for room and 
board in Washington (R. 49-50).

Murray further desires to attend the School of Law 
of the University of Maryland for profesisonal advant­
ages. He is preparing himself to practice law in Balti­
more, and attending law school in Baltimore would give



7

him the opportunity to observe the Maryland courts and 
to become acquainted with other Maryland practitioners 
(R. 45). Ninety-five per cent, of the enrollment in the 
School of Law of the University of Maryland comes from 
the State of Maryland (R. 84), and the School of Law 
lays emphasis on Maryland law (R. 85). A majority of 
its faculty is made up of judges and practicing attorneys 
of Maryland (R. 85).

Finally Murray desires to attend the School of Law of 
the University of Maryland in exercise of his rights as a 
citizen to share equally the advantages offered by a pub­
lic tax supported state university (R. 45).

Murray renewed the tender of his application and ex­
amination fee in open Court (R. 87), and submitted him­
self to be fully able to meet all legitimate demands of 
the School of Law of the University of Maryland (R. 46). 
The tender was refused (R. 87).

ARGUMENT.
I.

THE REFUSAL OF THE APPELLANTS TO ADMIT APPEL­
LEE, A QUALIFIED STUDENT, TO THE FIRST YEAR CLASS OF 
THE DAY SCHOOL OF THE SCHOOL OF LAW OF THE UNIVER­
SITY OF MARYLAND SOLELY ON ACCOUNT OF HIS RACE OR 
COLOR WAS IN VIOLATION OF THE CONSTITUTION AND 
LAWS OF THE STATE OF MARYLAND.

There is no statutory authority for excluding appellee 
from the School of Law of the University of Maryland 
solely on account of his race or color.

The declaration of Rights of the State of Maryland, 
Article 43, charges the legislature with the duty of en­



8

couraging “ the diffusion of knowledge and virtue, the 
extension of a judicious system of general education, the 
promotion of literature, the arts, sciences, agriculture, 
commerce and manufactures, and the general ameliora­
tion of the condition of the people.”  The State Consti­
tution, Article VIII, Section 1, provides:

“ The General Assembly, at its first session after 
the adoption of this Constitution, shall, by law, estab­
lish throughout the State a thorough and efficient 
system of free public schools; and shall provide by 
taxation or otherwise, for their maintenance.”

Nothing in the Declaration of Rights or in the State Con­
stitution requires or authorizes the separation of white 
and Negro students.

In execution of its trust the General Assembly set up 
a system of free public schools for the youth of the State, 
and has from time to time extended the system of free 
public education from the elementary, to the high school, 
to the normal school level.

See Bagby, Annotated Code of Maryland, Ar­
ticle 77.

Separate, but patently unequal, provisions are made in 
the public school laws for colored elementary, industrial, 
high and normal schools; the salaries of the colored 
teachers therein, and the administrative officers thereof.

For example, see:
Code, Art. 77, Chap. 3A, sec. 35 (4 ); Chap. 18; 

Chap. 19, Sec. 204; Chap. 20, Secs. 211- 
214.



9

No collegiate education for either white or Negro stu­
dents was provided as a part of the system of free pub­
lic schools. Down to the year 1935 the collegiate and pro­
fessional education which the State of Maryland offered 
to its citizens was provided by it at the University of 
Maryland, and through certain free scholarships to in­
stitutions within the State of Maryland attended exclu­
sively by white students.

See Code, Art. 77, secs. 240-257;
See Acts of 1912, Chap. 90, scholarships at 

The Johns Hopkins University.

By chapter 234, Acts of 1933 (Code, Art. 77, sec. 214A) 
the Legislature attempted to establish certain out-of- 
state “ partial scholarships”  for Negro students as fol­
lows :

“  * * * The Board of Regents of the University of 
Maryland may allocate such part of the state appro­
priation for Princess Anne Academy or other funds 
of the Academy as may be by it deemed advisable, to 
establish partial scholarships at Morgan College or 
at institutions outside of the State of Maryland, for 
Negro students who may apply for such privileges, 
and who may, by adequate tests, be proved worthy 
to take professional courses or such other work as 
is not offered in the said Princess Anne Academy, 
but which is offered for white students in the Uni­
versity of Maryland; and the Board of Regents of 
the University of Maryland shall have authority to 
name a Board which shall prepare and conduct such 
tests as it may deem necessary and advisable in or­
der to determine which applicants for scholarships 
may be worthy of such awards.”

The record shows (R. 34-36, 62-65) that no money was 
ever appropriated or allocated for these “ partial schol­
arships ’ ’ under the Act of 1933, nor was any scholarship 
under it ever awarded.



10

The first State appropriation for collegiate and pro­
fessional scholarships for Maryland Negro students was 
$10,000 provided by Chap. 577 of the Acts of 1935. This 
Act created a special Maryland Commission on Higher 
Education of Negroes, and assigned it the duty of admin­
istering the said $10,000 “ for scholarships to Negroes 
to attend college outside the State of Maryland, it be­
ing the main purpose of these scholarships to give the 
benefit of such college, medical, law, or other profes­
sional courses to the colored youth of the state who do 
not have facilities in the state for such courses, but the 
said commission may in its judgment award any of said 
scholarships to Morgan College. Each of said scholar­
ships shall be of the value of not over Two Hundred Dol­
lars ($200) * * (Italics ours.)

There is nothing in the charter of the University of 
Maryland and the acts amendatory thereto, as con­
firmed and adopted by Chapter 480, Acts of 1920, (Code, 
Art. 77, sec. 240) restricting admission to the University 
of Maryland to white students only.

The College of Medicine of Maryland, which was the 
nucleus of the present University of Maryland, was in­
corporated by Chapter 53, Acts of 1807. It was therein 
provided that the College be established “ upon the fol­
lowing fundamental principles, to wit: The said college 
shall be founded and maintained forever upon a most 
liberal plan, for the benefit of students of every country 
and every religious denomination, who shall freely be 
admitted to equal privileges and advantages of educa­
tion, and to all the honors of the college, according to 
their merit, without requiring or enforcing any religious 
or civil test * *



11

In 1812 (Chap. 159, Acts of 1812) the legislature 
authorized the College of Medicine “ to constitute, 
appoint and annex to itself, the other three colleges 
or faculties, viz., The Faculty of Divinity, the Fac­
ulty of Law, and the Faculty of the Arts and Sciences; 
and that the four faculties or colleges, thus united, shall 
be and they are hereby constituted an University, by the 
name and under the title of the University of Maryland.”  
The charter provided (Sec. 2, Chap. 159 supra) :

“ That the said University shall be founded and 
maintained upon the most liberal plan, for the bene­
fit of students of every country and every foreign 
denomination, who shall be freely admitted to equal 
privileges and advantages of education, and to all 
the honors of the University, according to their 
merit, without requiring or enforcing any religious 
or civil test, upon any particular plan of religious 
worship or service * * # ’ ’

This statement of basic policy has never been modified 
or limited in any way. Negro students were actually ad­
mitted into the School of Law of the University of Mary­
land in the 1890’s, and two graduated therefrom. (E. 86)

Until 1920 the University was a private institution 
within the meaning of the decision in Clark vs. Mary­
land Institute, 87 Md. 643 (1898). In 1920 by Chap. 480 
supra the legislature took over the University of Mary­
land as a state institution, adopted and confirmed the 
former charters (R. 4, 17). The Act of 1920 gave the 
State of Maryland one state university offering colle­
giate and professional education. The Act makes no 
distinction between the races and there is no expression 
in it which could be interpreted as applying to the white 
race only. In the absence of equal facilities for colie-



12

giate and professional education for qualified Negro cit­
izens otherwise, the Act if interpreted to benefit white 
students only would be unconstitutional.

“ * * * But the denial to children whose parents, 
as well as themselves, are citizens of the United 
States and of this State, admittance to the common 
schools solely because of color or racial difference 
without having made provision for their education 
equal in all respects to that afforded persons of any 
other race or color, is a violation of the provisions 
of the fourteenth amendment of the Constitution of 
the United States * * *”  Piper v. Big Pine Schools 
District 193 Cal. 664 (1924) at p. 668-669.

See also:

Ward v. Flood, 48 Cal. 36, 17 Am. R. 405 
(1874);

State v. Duffy, 7 Nev. 342, 8 Am. R. 713 
(1872);

U. S. v. Buntin, 10 Fed. 730 (C. C. Ohio) 
(1882);

Corey v. Carter, 48 Ind. 327 (1874);
Williams v. Bradford, 158 N. C. 36, 73 S. E. 

154 (1911);
5 Ruling Case Law, 596, sec. 20;
11 C. J C i v i l  Rights, sec. 10, p. 805;
Cooley on Torts (Perm. Ed.) sec. 236.

There were, and are, no other facilities for Negroes to 
study law in the State of Maryland (R. 5, 18), so that 
under the well established doctrine that a statute will not 
be declared unconstitutional so long as a constitutional 
interpretation is reasonably available, the Act of 1920 
must be held to open the doors of the University of Mary­



land to qualified white and black citizens of Maryland 
alike.

“ We are not at liberty to declare a legislative act 
void, as being unconstitutional, unless it is clearly 
so, beyond any reasonable doubt. There is always 
a strong presumption in force of the validity of leg­
islation, which must be overcome by some convinc­
ing reason to induce a court to declare it void. The 
act under consideration makes no distinction be­
tween the races and there is no expression in it 
which leads us to think that the school was intended 
for the exclusive benefit of one race or the other 
* * * ”  Whitford v. Board of Commissioners, 159 
N. C. 160, 74 S. E. 1014 (1912) at p-1015.

The sole question remaining under this sub-heading 
is whether any subsequent statute has legally modified 
the effect of the Act of 1920 so as to exclude Negroes 
from the School of Law of the University of Maryland. 
This depends upon the interpretation of the two so- 
called out-of-state scholarship acts of 1933 and 1935, 
supra.

There is no express provision in either act condition­
ing the scholarships upon a forfeit of the Negro stu­
dent’s right to attend the University of Maryland, any 
more than there is a condition of forfeiture upon the 
“ Free Scholarships’ ’ established through state appro­
priation at St. Mary’s Female Seminary, St. John’s Col­
lege, Western Maryland College, Maryland Institute, 
Washington College, Charlotte Hall School, The Johns 
Hopkins University, etc.

See Code, Art. 77, secs. 241 et seq.; Acts of 
1912, Chapter 90.



14

White students have the option of attending the Uni­
versity of Maryland or applying for “ free scholarships”  
covering the same courses at the institutions mentioned; 
and in the case of The Johns Hopkins University “ free 
scholarships” , for courses not offered in the Univer­
sity of Maryland. The language of the act of 1933 is dis­
tinctly permissive only: “ partial scholarships * * * for 
Negro students who may apply for such privileges” .

Nothing in the 1933 Act says that Negro students who 
do not desire to apply for such privileges cannot attend 
the University of Maryland. The 1935 act is a limited 
enabling act good for two years only, creating scholar­
ships outside the State without reference to the limita­
tion of parallel courses at the University of Maryland. 
It is impossible to read into these acts of 1933 and 1935 
any forfeiture of the rights of qualified Negro citizens 
of Maryland to attend the state University of Maryland 
without striking down the whole structure of public col­
legiate and professional education in the State of Mary­
land as unconstitutional because therein Negroes are 
denied the equal protection of the laws.

There is no statutory authority express or implied 
which excludes Negroes from the University of Mary­
land.

B. In the absence of statutory authority the at­
tempted administrative regulation by the executive offi­
cers and agents of the University of Maryland and by the 
Board of Regents excluding appellee from the School of 
Law of the University of Maryland solely on account of 
his race or color is void.

The right of admission to a state university is a right 
which the trustees or other officers are not authorized to



15

abridge materially, and which they cannot as an abstract 
proposition rightfully deny.

Foltz v. Hoge, 54 Cal. 28 (1879);
State v. White, 82 Ind. 278 (1912);
Cornell v. Gray, 33 Okla. 591 (1912).

It has been uniformly held that in the absence of express 
authority by statute, a municipality, school district or 
board has no authority even to separate white and col­
ored children for educational purposes.

“  * * * It must be remembered that unless some 
statute can be found authorizing the establishment 
of separate schools for colored children that no such 
authority exists; * * * ”  Board of Education v. 
Tinnon, 26 Kan. 1, 39 L. R. A. 1020 (1881).

Crawford v. District School Board, 68 Or. 388, 
137 Pac. 217 (1913).

The administrative authority, in the absence of power 
delegated by statute, cannot exclude Negro students from 
schools established for white students, even though the 
educational facilities in the segregated Negro school are 
equal or superior to those of the white school.

People ex rel. Bibb v. Mayor, 193 111. 309, 61 
N. E. 1077, 56 L. R. A. 95 (1901).

All youth stands equal before the law,

Clark v. Board, 24 Iowa 266, 277 (1868).

The question as to what the legislature might have 
done is beside the point; the administrative authority 
cannot arrogate to itself the legislative functions.

Tape v. Hurley, 66 Cal. 473, 6 P. 129 (1885).



16

It is noteworthy herein that appellants themselves do 
not claim any statuory authority for excluding appellee 
from the School of Law of the University of Maryland 
solely on account of his race or color. The only authority 
they rely on is a resolution of the Board of Regents April 
22, 1935, recorded in the minutes of the Board and set 
out in the Record pp. 60-61.

While the Board of Regents of the University of Mary­
land has large and discretionary powers in regard to the 
management and control of the University, it has no 
power to make class distinctions or racial discrimination.

See Chase v. Stephenson, 71 111. 383, 385 
(1874).

The reason is obvious. A  discrimination by the Board 
of Regents against Negroes today may well spread to a 
discrimination against Jews on the morrow; Catholics 
on the day following; red headed men the day after that.

“  # * * it is obvious that a board of directors 
can have no discretionary power to single out a part 
of the children by the arbitrary standard of color, 
and deprive them of the benefits of the school privi­
lege. To hold otherwise would be to set the discre­
tion of the directors above the law. If they may 
lawfully say to the one race you shall not have the 
privilege which the other enjoys they can abridge the 
privileges of either until the substantive right of one 
or both is destroyed.”  Maddox v. Neal, 45 Ark. 121, 
124 (1885).

Most of the cases above cited have dealt with elemen­
tary education and neighborhood schools. If a board of 
education cannot of its own motion exclude Negro child­
ren from a neighborhood school, although more schools



17

are available within the same community, it follows with 
greater force that the administrative authority of the 
only state university within the territory of the State 
cannot, minus legislative authorization, exclude a quali­
fied citizen of the State from the only instruction in law 
which the State offers to its citizens. Counsel has been 
unable to find a case with facts exactly paralleling the 
instant case. The most recent case involving an apparent­
ly allied problem is State ex rel. Weaver v. Board of 
Trustees of Ohio State University, 126 Ohio St. 290, 185 
N. E. 196 (1933). In that case, however, no attempt was 
made to exclude the Negro student from the University, 
nor even from the course. The court took the position 
that the University was offering her its full facilities, 
exactly the same as it offered to the white students in the 
same courses.

Cf. Patterson v. Board of Education, 11 N. J.
Misc. 179 (1933).

As distinguished from the Weaver ease, the administra­
tive authority of the University of Maryland, on its own 
responsibility, attempted to withhold all the facilities of 
the University from appellee solely on account of his race 
or color.

The school eases establish clearly that this attempted 
exclusion was void.

C. Appellants having conceded of record that appel­
lee was qualified from an educational standpoint to he ad­
mitted into the Day School of the School of Law of the 
University of Maryland, and hasing their refusal to ad­
mit him solely on account of his race or color, the trial 
court was correct in issuing the ivrit of mandamus.



18

While the State is under no compulsion to establish a 
state university, yet if a state university is established 
the rights of white and black are measured by the test 
of equality in privileges and opportunities. No arbitrary 
right to exclude qualified students from the University 
of Maryland is claimed by appellants except as to quali­
fied Negroes, whom the administrative authority would 
reject on the sole ground of race or color. As to all other 
racial elements comprising the population of Maryland, 
the appellants concede that if the students were other­
wise qualified they would be admitted as a matter of 
course. (R. 55-59.) White students from foreign states, 
if otherwise qualified, would be admitted as a matter of 
course. (R. 59.) In other words, assuming that a student 
is qualified his admission to the proper course in the Uni­
versity of Maryland, provided he is not a Negro, is a 
ministerial matter. If he is a qualified Negro, he is re­
jected automatically (R. 55-59).

Appellants stipulated of record that appellee was fully 
qualified from an educational standpoint to be admitted 
into the Day School of the School of Law of the Univer­
sity of Maryland (R. 44), to which he had applied for 
admission (R. 6, 10). They automatically and arbitrarily 
rejected him solely on account of his race or color. (R. 
18-22, 30-34, 60-61.) No element of discretion was in­
volved.

Under these circumstances the writ of mandamus was 
properly issued after full consideration of all the plead­
ings, stipulations of record and the evidence taken, to 
undo the arbitrary wrong inflicted by the appellants on 
the appellee, and to compel them to the proper perform­
ance of their ministerial duty to accept and register him



19

in the Day School of the School of Law of the University 
of Maryland upon the same terms as any other qualified 
applicant.

See
State v. Duffy, 7 Nev. 342 (1872).
Ward v. Flood, supra.
Piper v. Big Pine School District, supra. 
Woolridge v. Board of Education, 157 Pac. 

1184 (1916).
People ex rel. Bibb v. Mayor etc. City of 

Alton, supra,
Lowery v. Board of Trustees, 52 S. E. 267 

(1906).
Clark v. Board of Trustees, 24 Iowa 266 

(1868).
Smith v. Independent School District, 40 Iowa 

518 (1875).

II.
APPELLANTS’ ATTEMPT TO EXCLUDE APPELLEE, A QUALI­

FIED STUDENT, FROM THE DAY SCHOOL OF THE SCHOOL OF 
LAW OF THE UNIVERSITY OF MARYLAND SOLELY ON AC­
COUNT OF RACE OR COLOR WAS A DENIAL TO HIM OF THE 
EQUAL PROTECTION OF THE LAWS WITHIN THE MEANING 
OF THE FOURTEENTH AMENDMENT TO THE CONSTITUTION 
OF THE UNITED STATES.

A. The acts of the executive officers and agents of the 
University of Maryland, and of the Board of Regents, in 
attempting to exclude appellee, a qualified student, from 
the School of Law of the University of Maryland was 
state action within the meaning of the Fourteenth 
Amendment to the Constitution of the United States.



20

It being conceded of record that the University of 
Maryland is an administrative department of the State 
of Maryland, and a State institution performing an es­
sential governmental function; that the funds for its sup­
port and maintenance in part are derived from the gen­
eral Treasury of the State out of funds procured by taxes 
collected from the citizens of Maryland; that the appro­
priations for it are made by the Legislature as a part of 
the public school system; that the governing body of the 
University is the Board of Regents, who are appointed 
by the Governor, by and with the consent of the Senate; 
and that the appellant President of the University and 
the appellant Registrar function as agents of the Board 
of Regents under their supervision and control (R. 4, 17- 
18)—it follows that the action of the President, the Reg­
istrar and the Board of Regents in attempting to exclude 
appellee from the School of Law of the University of 
Maryland solely on account of his race or color was state 
action within the meaning of the Fourteenth Amendment 
to the Constitution of the United States.

“ Whoever, by virtue of public position under a 
State government, deprives another of property, 
life, or liberty, without due process of law, or denies 
or takes away the equal protection of the laws, vio­
lates the constitutional inhibition; and as he acts in 
the name and for the State, and is clothed with the 
State’s power, his act is that of the State. This must 
be so, or the constitutional prohibition has no mean­
ing. Then the State has clothed one of its agents with 
power to annul or to evade it.”  Ex parte Virginia, 
100 U. S. 339, 346 (1879).

B. The State of Maryland having established a state 
university supported in part from public funds and 
under public control, appellee, if otherwise qualified,



21

could not be excluded therefrom solely on account of his 
race or color.

The general proposition that a state cannot establish a 
single state university and exclude Negro citizens solely 
on account of race or color has already been argued supra 
under Section I-A. At the trial appellants did not serious­
ly challenge this general proposition, but maintained that 
the State had provided appellee with equal facilities for 
the study of law otherwise than in the School of Law of 
the University of Maryland. The argument which fol­
lows will demonstrate that no such equal facilities have 
been afforded appellee.

C. That the State of Maryland has provided appellee 
no equivalent in opportunities for legal education equal 
to the opportunities and advantages offered him in the 
School of Law of the University of Maryland.

The question whether the State of Maryland has 
offered appellee any opportunities and facilities for the 
study of law otherwise than in the School of Law of the 
University of Maryland depends upon the two so-called 
scholarship acts of 1933 and 1935 supra.

The administration of the scholarship act of 1933 was 
committed to appellants, the Board of Regents. The rec­
ord discloses that the interpretation of the act was that 
the Board of Regents was to give the Negro student the 
difference between the cost of his tuition in the foreign 
school and the cost of tuition for the same course in the 
University of Maryland. If the tuition in the foreign 
school happened to be lower than the tuition for the same 
course in the University of Maryland, the Negro student



22

was to receive nothing. (R. 71.) Appellant Pearson, Pres­
ident of the University of Maryland, in rejecting appel­
lee’s application solely on account of race or color re­
ferred him to the scholarship act of 1933 and suggested 
that he register in the Howard University School of Law. 
(R. 33-34.) On the witness stand appellant Pearson was 
forced to admit that if appellee had registered in How­
ard University School of Law, he would not have in­
tended to give appellee a single cent under the scholar­
ship act of 1933 (R. 71).

Appellee is reluctantly forced to charge the appellants 
with evasion throughout. The attitude of the Board 
of Regents of the University of Maryland toward 
Negro education in the State is illustrated in its at­
tempt to avoid giving Princess Anne Academy its 
fair share of the money due it under the Federal 
Morrill Act. The Morrill Act of 1862 provided for Fed­
eral grants in aid of State land grant colleges. It was 
amended by Act of August 30, 1890, to prohibit expressly 
discrimination on account of race; but it was therein pro 
vided that if a State maintained separate educational in­
stitutions of like character for white and colored, and a 
just and equitable division of the fund received be divided 
by the State between the two institutions such division 
should be deemed a compliance with the Act. The State 
of Maryland regularly received Federal donations under 
the Morrill Act, and down to 1933 applied the same for 
the benefit of white students only. In 1933 the General 
Assembly provided (Acts of 1933, Chap. 34; Code, Art. 
77, Sec. 214A supra) that the donations received under 
the Morrill Act, which amounted to $50,000 per year, 
should be “ divided on the basis of the population of the 
State of Maryland as shown by the latest census, so that



23

a percentum of these funds equal to the percentum of the 
Negro population to the whole population of the State, 
shall be expended by the Comptroller of the State, upon 
recommendation of the Regents of the University of 
Maryland, for the benefit and in the interests of the Prin­
cess Anne Academy.”  (Italics ours.) The Census of 1930 
established that Negroes constituted approximately 17% 
of the total population of Maryland, which would make 
the sum to be expended for the benefit of Princess Anne 
Academy under the Act approximately $8,500.00.

The minutes of the Board of Regents show that less 
than a year previously, to wit on September 9, 1932, (R. 
61) the Board of Regents had attempted to avoid using 
any of the proceeds of the Morrill Act donations for 
Negro education by withdrawing $600.00 from the miser­
ably small existing budget of Princess Anne Academy 
to create some Junior and Senior College scholarships:

“ The Committee on Princess Anne recommends 
that authority be given for the use of not to exceed 
$600, payable from available funds in the Princess 
Anne budget, as scholarships for students who have 
completed the Freshman and Sophomore college 
work now offered at Princess Anne and who desire 
to take Junior and Senior years of college work. In 
view of the fact that Junior and Senior work is not 
given at Princess Anne it will be necessary for the 
higher work in agriculture to be obtained in some 
other state. These scholarships would be used to 
assist such students.

‘ ‘ These scholarships would represent a smaller ex­
penditure of State funds than would be required to 
provide the additional education facilities at Prin­
cess Anne. A precedent for such scholarships had 
been provided by other states and the scholarships 
are recommended by the Federal Office of Education.



24

The institution of a few of these Scholarships would 
make it impossible for anyone to claim that Negroes 
are not given a fair opportunity in Maryland under 
the terms of the Land Grant legislation * * * ”  (R. 61, 
italics ours).

A  specious gesture on the part of the Board of Regents 
to delude the Negro population of Maryland and keep it 
quiet.

It is to be noted that the Board of Regents ratified in 
full the duplicity of the appellant President in dealing 
with the appellee; and that this ratification coming April 
22, 1935 (R. 60) antedated the scholarship act of 1935, 
which was approved April 29, 1935. At that time the 
Board of Regents, agents of the State of Maryland, did 
not even have the semblance of an equivalent to offer ap­
pellee in exchange for excluding him from the School of 
Law of the University of Maryland solely on account of 
his race or color; but they affirmed the conduct of the 
President of the University in concealing that fact from 
him.

The dual and inferior standard which appellants apply 
to Negro education is evidenced by the pitiful attempt of 
the President of the University on the witness stand to 
assert that just as good a course was offered at Princess 
Anne as at College Park. (R. 51-53, 67-69, 72-76).

Not only on the part of the Board of Regents but in 
the official policy of the State as expressed in its school 
laws (See Code, Art. 77, supra), it is notorious that no 
real attempt is made to provide true equality between 
white and Negro public education in Maryland in a single 
particular: length of school term, teacher’s salaries, bus



25

transportation, high school facilities, per capita cost of 
education per pupil, or otherwise. The scholarship act 
of 1935 (Acts of 1935, Chap. 577) is no exception.

This scholarship act of 1935 is a special experimental 
limited act providing $10,000 for the total of scholarships 
for Negro collegiate, graduate and professional educa­
tion. The act was interpreted to provide scholarships for 
tuition only. (R. 112.)

No provision is made for the differential in mainte­
nance between what it would cost the Negro student to 
maintain himself at the University of Maryland and what 
it would cost him to maintain himself at the foreign 
school. No differential in cost of travel is provided. The 
Negro student would have to bear the cost of mainte­
nance and travel himself.

Appellee does not concede that it is constitutional for 
a State to exile one set of its citizens beyond its borders 
to obtain the same education which it is offering to citi­
zens of different color at home. It is not without signifi­
cance that all the “ free scholarships”  which the State 
provides for its white citizens are in Maryland colleges 
and universities. Only its Negro citizens are exiled.

But granting for the sake of argument, that the Act is 
not void for constitutional reasons regardless of its 
money provisions, it still does not furnish appellee the 
equivalent of a course in law at the School of Law of the 
University of Maryland.

1. Even though his tuition charges of $135.00 in the 
Howard University School of Law would be paid by the 
State of Maryland, and he himself would have to pay



26

$203.00 to attend the Day School of the School of Law 
of the University of Maryland (R. 33-34), appellee 
would still be the loser to attend the Howard University 
School of Law.

a. If he commuted from his home in Baltimore to 
Washington and return each school day, commutation 
would cost him approximately $15.00 per month for 9 
months; he would have to buy at least one meal per 
school day in Washington; he would lose four hours per 
school day on the road from home to school and back 
again, or approximately 840 hours during the school 
year which he might otherwise use in relaxed, uninter­
rupted work on his courses. Then there would be the 
physical energy expended in the travel back and forth 
catching early and late trains.

b. If he lived in Washington he would have to pay for 
separate room and board, whereas attending the School 
of Law of the University of Maryland he could live at 
home with no maintenance expense. (R. 50.) The question 
whether he can be forced into exile has already been 
noted.

2. Since appellee desires to practice law in Baltimore, 
the $135.00 scholarship would be no equivalent for loss 
of the opportunity to observe the courts in Baltimore 
during his law school career which would be possible if 
he attended the School of Law of the University of Mary­
land ; no equivalent for the familiarity and drill he would 
get in Maryland law through the special emphasis laid 
on it in the instruction given in the School of Law of the 
University of Maryland; no equivalent for the oppor­
tunity he would have to become acquainted with, to ap­



27

praise the strength and weaknesses of the Judges and 
practitioners of Maryland whom he would have to deal 
with later in his practice. It must be remembered that the 
law is a competitive profession, and this matter of equiv­
alent must be judged in part on the basis of the handicap 
which appellee would have coming from a foreign law 
school in competitive practice with graduates of the 
School of Law of the University of Maryland.

3. The $135.00 scholarship is but a tempting mess of 
pottage held out to induce him to sell his citizenship 
rights to the same treatment which other citizens of 
Maryland receive, no more and no less. Equivalents must 
also be considered in terms of self-respect. Appellee is a 
citizen ready to pay the same rate of taxes as any other 
citizen, and to go as far as any other citizen in discharge 
of the duties of citizenship to state and nation. He does 
not want the scholarship or any other special treatment.

4. The School of Law of the University of Maryland 
is firmly established in the life of the State. Founded in 
1813, the School of Law has been providing legal educa­
tion to the citizens of Maryland without interruption 
since 1870. The scholarship act of 1935 is frankly a tem­
porary experiment with only two years of life guaranteed 
it. The shortest day law course in a recognized law school 
is three years. The scholarship act by the wildest stretch 
of the imagination cannot be considered the equivalent 
of the School of Law of the University of Maryland.

It is plain that the State of Maryland has not offered 
appellee the equivalent of the opportunities and advan­
tages which he would have in studying law in the School 
of Law of the University of Maryland.



28

D. The attempt by appellants to exclude appellee 
from the School of Law of the University of Maryland 
solely on account of his race or color, in the absence of 
equal opportunities and advantages in legal education 
otherwise furnished him by the State of Maryland, was a 
denial to him of the equal protection of the laws within 
the meaning of the Fourteenth Amendment to the Con­
stitution of the United States.

The argument on this point has already been antici­
pated throughout the brief.

It is the further contention of the appellee that even if 
this Court should find that the General Assembly in­
tended to exclude Negroes from the University of Mary­
land by the so-called scholarship acts of 1933 and/or 
1935, nevertheless since said acts furnished Negroes no 
true equality they are unconstitutional and cannot be the 
legal predicate of an exclusion of Negroes from the Uni­
versity.

“ Had the petition alleged specifically that there 
was no colored school in Martha Lum’s neighbor­
hood to which she could conveniently go, a different 
question would have been presented, and this, with­
out regard to the State Supreme Court’s construc­
tion of the State Constitution as limiting the white 
schools provided for the education of children of the 
white or Caucasian race.”  Gong Lum v. Rice, 275 U.
S. 78, 84 (1927).

In the principal case appellee has maintained from the 
beginning that the only law school in Maryland which he 
could attend is the School of Law of the state University 
of Maryland, and that the State has offered him no equiv­
alent substitute therefor. Appellants’ attempt to exclude



29

him from the School of Law under the circumstances, 
solely on account of his race or color, is a denial to him of 
the equal protection of the laws within the meaning of 
the Fourteenth Amendment to the Constitution of the 
United States.

Ward v. Flood, 48 Cal. 36 (1874).
Piper v. Bin Pine School District, 193 Cal. 664 

(1924).
United States v. Buntin, 10 Fed. 730 (1882).
People, ex rel. Bibb, v. Alton, 193 111. 309 

(1901).

It remains to notice some of the argument advanced 
by the appellants at the trial in their attempt to defeat 
the application for the writ.

1. Appellants contended that there was no demand 
on the part of Maryland Negroes for collegiate and pro­
fessional education (E. 21). The record however shows 
that the number of applications for scholarships under 
the Act of 1935 was so great that there would not be schol­
arship money enough to satisfy all qualified applications. 
(E. 110-111). 626 Negroes are registered in Morgan Col­
lege in Baltimore. (E. 67). Further it does not sound 
well for the agents of the State to complain that there is 
no great demand on the part of Negroes for collegiate 
and professional education, when the State itself has 
made it difficult for Maryland Negroes to qualify for col­
legiate and professional education because of the inferior 
elementary schools which the State and counties maintain 
and the absence of adequate high school facilities for 
Negroes. Finally appellee is an individual. His years 
and days are numbered, and he cannot wait for his educa­
tion until there is a mass demand to the satisfaction of



30

the appellants. A  citizen’s constitutional rights receive 
protection on an individual basis.

“ This argument with respect to volume of traffic 
seems to us to be without merit. It makes the Consti­
tutional right depend upon the number of persons 
who may be discriminated against, .whereas the es­
sence of the constitutional right is a personal one.”  
McCabe v. Atchison Topeka & Santa Fe Rv. Co., 235 
IT. S. 151, 160 (1914).

2. Appellants contended that public sentiment de­
manded the exclusion of appellee from the School of Law 
of the University of Maryland (R. 66), and dire predic­
tions were made that there would be disorders, loss of 
enrollment and general friction if appellee were admitted 
to the School of Law. It is a notorious fact of public com­
ment and general note in the public press of which this 
Court can take judicial notice and which appellants will 
not deny, that the School of Law opened for its Fall term 
September 25, 1935, that appellee registered and was ad­
mitted as a student, and there has been no disorder, no 
friction, no loss of enrollment, but on the contrary a sub­
stantial increase in enrollment both in the School of Law 
and in the total enrollment in the University.

Maryland has come a long way from the days of Clark 
v. Maryland Institute, 87 Md. 643 (1898), where the Su­
perior Court of Baltimore City denied mandamus to com­
pel the Maryland Institute to enroll a Negro student. 
This Court affirmed on the ground that the Maryland In­
stitute was a private institution, but went on in its opin­
ion to note:

“  * * # The effect of the admission of these four 
pupils was very disastrous. There was an immovable



31

and deep settled objection on the part of the white 
pupils to an association of this kind. Notwithstand­
ing earnest and zealous efforts on the part of the 
board of managers and the faculty of teachers to 
reconcile the white pupils, their parents and guar­
dians to the innovation, it caused a great decrease in 
the number of pupils; and the bringing of this suit 
made it still greater”  (p. 656).

It is the height of absurdity to say that appellee Mur­
ray cannot sit in the same room and recite and study with­
out friction with the same men, who within the next few 
years will have to sit side by side with him within the bar 
of the Court and at the counsel table.

The question was asked the President of the Univer­
sity on the witness stand “ just what harm, in your opin­
ion, would arise from the fact that a Negro boy might 
want to occupy a seat at the law school of the University 
of Maryland, the same as any other student, minding his 
own business.”  The President replied: “ I did not go into 
that question. I felt I knew the well-established policy in 
this State, the District of Columbia, and different States, 
and personally, I was influenced by that policy. ’ ’ He was 
asked whether the question had ever been submitted to 
the students of the School as to the admission of Negro 
students. He replied he did not know (B. 66). The stu­
dents of the School of Law, however, have themselves 
given the answer by the absence of friction due to Mur­
ray’s presence in the School and no loss in enrollment 
altho the order admitting him was entered and made 
public property June 25, 1935, three months prior to the 
opening of the autumn term.

Appellee does not concede that if public sentiment were 
hostile this Court would be entitled to uphold his exclu­



32

sion from the School of Law of the University on that 
ground in the absence of statute.

Clark v. Board of Directors, 24 Iowa, 266 
(1868).

If the constitutional right exists, the test of sovereign­
ty in a government is its ability to enforce and protect 
the same even in the face of a temporary manifestation 
of hostile public sentiment. But appellee is gratified that 
he can report in this case that there has been in the School 
no manifestation of a hostile public sentiment, and no 
evidence of harm done the institution or any of its mem­
bers.

CONCLUSION.
For the aforegoing reasons it is respectfully submitted 

that the decision of the trial court be affirmed.

Respectfully submitted,

THURGOOD MARSHALL, 

CHARLES H. HOUSTON, 
WILLIAM I. GOSNELL,

Attorneys for Appellee.