McKissick v. Carmichael Jr. Appendix to Appellants' Brief

    littfceii #tatra Cttnurt of Apprata
F oe, t h e  F ourth  C ircu it

No, 6201

FLOYD B. McKISSICK, SOLOMON REVIS, et al„
Appellants,

against

WILLIAM DONALD CARMICHAEL, JR., President of 
the University of North Carolina; HENRY P. BRANDIS, 
JR., Dean of the Law School of the University of North 
Carolina; LEE ROY WELLS ARMSTRONG, Director 
of Admissions of the University of North Carolina; 
ARCH T. ALLEN, Secretary of the Board of Trustees 
of the University of North Carolina; and THE UNI­
VERSITY OF NORTH CAROLINA, a Body Incorpo­
rate,

Appellees.

A ppe al  F rom  the D istrict  C ourt of t h e  U nited  S tates, 
M iddle D istrict  op N orth  C aro lin a .

APPENDIX TO APPELLANTS’ BRIEF

C. 0 . P earson ,
P. 0. Box 428,
Durham, North Carolina.

R obert L. C arter,
T hurgood M arsh a ll ,

20 West 40t,h Street,
New York 18, N. Y.

Attorneys for Appellants.

Judicial Printing Co., I nc., 82 Beekman St., N. Y.— BEekman 3-9084-5-6 182



I N D E X

PAGE

Complaint.......................................................................... 1

Answer .............................................................................. 7

Motion of Floyd B. MeKissick, Sol Revis, Harvey 
Beech, Walter Nivins, Perry Gilliard, James Lassiter 
to Intervene..................................................................  14

Motion of J. Kenneth Lee to Intervene .....................  17

Answer to Complaint of Intervenors ..........................  20

Excerpts From Testimony ............................................ 22

Opinion of Hayes, D. J....................................................  281

Decree ............................................................................... 290

TESTIMONY

P l ain tiffs  ’ W itnesses

William D. Carmichael, J r .:
Direct by Mr. C arter...............................................  27

J. Kenneth Lee:
Direct by Mr. P earson ...........................................  29
Cross by Mr. McMullan..............................     D O

Henry P. Brandis, J r .:
Direct by Mr. Marshall............................................ 38
Cross by Mr. McMullan................    66



11 INDEX

Redirect by Mr. M arshall-----
Recross by Mr. McMullan 
Re-redirect by Mr. Marshall .. 
Re-recross by Mr. McMullan . 
Re-re-redirect by Mr. Marshall

Lucille Elliott:
Direct by Mr. Pearson ...........
Cross by Mr. Ehringhaus . . .
Redirect by Mr. Pearson.......
Recross by Mr. Ehringhaus .. 
Re-redirect by Mr. Pearson .. 
Re-recross by Mr. Ehringhaus 
Re-re-redirect by Mr. Pearson

Albert L. Turner:
Direct by Mr. Carter . . . . . . . .
Cross by Mr. McMullan........
Redirect by Mr. C arter........
Recross by Mr. McMullan . . .

Janies M. Nabrit:
Direct by Mr. C arter.............
Cross by Mr. Um stead.........

Malcolm Pitman Sharp:
Direct by Mr. Marshall.........
Cross by Mr. Um stead.........
Redirect by Mr. Marshall-----

PAGE

.. 73 

.. 76

.. 77

. .. 78

.. 79

.. 79

... 86 

, 9 1  

. . .  92

. . .  93

. . .  94

. . .  94

. . .  97

. . .  114 

. . .  124 

. . .  128

. . .  130 

. . .  149

. . .  185 

. . .  203 

. . .  213



I N D E X  111

PAGE

Ervin N. Griswold:
Direct by Mr. Marshall...........................................  216
Cross by Mr. McLendon.........................................  226
Redirect by Mr. Marshall ...................................... 266

EXHIBITS 

P l ain tiffs  ’ E xhibits

3—Excerpts from Bulletin of University of North 
Carolina School of Law showing publication of 
the faculty thereof (admitted into evidence at page 
130) ...........................................................................  268

6— List of prominent alumni of the University of 
North Carolina Law School in Who’s Who in 
America (admitted into evidence at page 215) . . .  270

7— Schedule of all North Carolina attorneys listed
in biographical section of the 1950 edition of 
the Martindale-Hubbell Law Directory showing 
schools in which they received their legal education 
(admitted into evidence at page 215) ...................  272



APPENDIX TO APPELLANTS’ BRIEF

Httitei) States (Knurl of Apprala
F or th e  F ourth  C ircu it

F loyd B . M cK issick , S olomon R evis, et al.,
Appellants,

against

W illiam  D onald  Carm ich ael , J r ., President of the Univer­
sity of North Carolina; H en ry  P. B randis , J r ., Dean of 
the Law School of the University of North Carolina; 
L ee R oy W ells  A rm strong , Director o f  Admissions of 
the University of North Carolina; A rch  T. A l l e n , Sec­
retary of the Board of Trustees of the University of 
North Caroline; and the U n iversity  oe N orth  Carolina , 
a Body Incorporate,

Appellees.

Complaint

1. (a) The jurisdiction of the Court is invoked under 
Section 24 (1) of the Judicial Code (28 U.S.C.A., Section 
41 (1)), this being a suit which arises under the Constitu­
tion and laws of the United States, viz., the Fourteenth 
Amendment of said Constitution and Sections 41 and 43 of 
Title 8 of the United States Code, wherein the matter in 
controversy exceeds, exclusive of interest and costs, the 
sum of $3,000.

(b) The jurisdiction of this Court is also invoked under 
Section 24 (14) of the Judicial Code (28 U.S.C.A., Section 
41 (14)), this being a suit authorized by law to be brought 
to redress the deprivation under color of law, statute, regu­
lation, custom and usage of a state of rights, privileges and



2

immunities secured by the Constitution, and of rights 
secured by the laws of the United States providing for equal 
rights of citizens of the United States, and of all other per­
sons within the jurisdiction of the United States, viz., Sec­
tions 41 and 43 of Title 8 of the United States Code.

2. Plaintiffs further show that this is a proceeding for 
a declaratory judgment and injunction under Section 274d 
of the Judicial Code (28 U. S. C. A., Section 400) for the 
purpose of determining questions in actual controversy 
between the parties, to wit:

(a) The question of whether the custom and practice 
of the defendants in denying, on account of race and color, 
to plaintiffs and other qualified Negroes similarly situated 
the right to receive educational advantages equivalent to 
those offered to whites at the University of North Carolina 
is unconstitutional and void as being in violation of the 
Fourteenth Amendment to the Constitution of the United 
States.

(b) The question of whether the custom and practice 
of the defendants in denying, on account of race and color, 
to plaintiffs and other Negroes similarly situated the right 
to access to the educational facilities at the University of 
North Carolina Law School which is the only facility main­
tained by the state where the plaintiffs can secure an edu­
cation equal to that offered to whites at the University of 
North Carolina.

3. All parties to this action are residents of and citi­
zens of North Carolina and of the United States.

4. This is a class action authorized under Rule 23A of 
the Rules of Civil Procedure for the District Courts of the 
United States. The rights here involved are of common

Complaint



3

and general interest to the members of the class repre­
sented by plaintiffs, namely, Negro citizens of the United 
States and residents of the State of North Carolina who 
possess all the qualifications for admission to the Law 
School of the University of North Carolina. The members 
of the class are so numerous as to make it impracticable 
to bring them all before the Court and for this reason 
plaintiffs prosecute this action in their own behalf and 
on behalf of the class without specifically naming the said 
members therein.

5. Plaintiff, Harold Thomas Epps, is a Negro and is 
a citizen of the United States and the State of North Caro­
lina and is presently a third-year student in the School of 
LawT of the North Carolina College for Negroes; has duly 
qualified for admission to the law school of the University 
of North Carolina as an advanced student and his admis­
sion was refused solely because of his race and color.

6. Plaintiff, Robert Davis Glass, is a Negro and is a 
citizen of the United States and the State of North Carolina 
and is presently a second-year student in the School of Law 
of the North Carolina College for Negroes; has duly quali­
fied for admission to the law school of the University of 
North Carolina as an advanced student and his admission 
was refused solely because of his race and color.

7. Defendant, William Donald Carmichael, Jr., the 
President of the University of North Carolina, is the Chief 
Academic officer of the University to whom is delegated the 
duties of executing the policy and rules adopted by the 
defendant-Board of Trustees with respect to the govern­
ment of the said University.

8. Defendant, Henry P. Brandis, Jr., Dean of the 
University of North Carolina Law School, is the Chief

Complaint



4

Academic Officer of the law school whose duties comprise 
the government of said law school, including the admission 
and acceptance of applicants eligible to enroll therein as 
students, including plaintiffs.

9. Defendant, Lee Roy Wells Armstrong, Director of 
Admissions of the University of North Carolina is charged 
with the duty of passing on the eligibility for admission 
to the University of all applicants who apply therefor, 
including plaintiffs.

10. Defendant, Arch T. Allen, is the Secretary of the 
Board of Trustees of the University of North Carolina 
which has overall control of the affairs of the University 
and which is incorporated under the name University of 
North Carolina. (G. S. 116-03)

11. Defendant, the University of North Carolina, is a 
body incorporate under and by virtue of the laws of the 
State of North Carolina, and it is sued as such.

12. All defendants herein are being sued in their 
official capacities as such.

13. The State of North Carolina has by law estabished 
and maintained over the years, and is now maintaining, a 
School of Law of the University of North Carolina as a 
part of its State University System (G. S. 116-1); that the 
said school of law is, as a part of the State University 
System, a public institution for the youth of the State (N. 
C. Constitution, Article 9, Sec. 7; G. S. 116-1), and is sup­
ported by means of public funds. There is no other school 
of law maintained and operated out of public funds of the 
state where plaintiffs can secure educational advantages 
and facilities equivalent to those maintained at the Univer­
sity of North Carolina School of Law.

Complaint



5

14. The defendants herein are "by law charged with the 
duty of maintaining, operating and supervising the said 
school of law of the University of North Carolina and of 
effectuating and carrying out its purposes of teaching law 
and preparing such persons as are enrolled therein for the 
legal profession; that as a part of their said supervisory 
control over the school of law, these defendants are clothed 
and vested with exclusive authority to pass upon the quali­
fications for admission of persons who apply for study and 
training in the said school.

15. In compliance and conformity with the procedure, 
rules and regulations set out and adopted by these defend­
ants for seeking admission to the said School of Law, plain­
tiffs, and each of them on or before April 1, 1949, have 
timely and properly presented applications to these defend­
ants for admission to the said School of Law, and accom­
panied said applications with such records of past academic 
achievements, character and personality references and 
other material as were required; that despite plaintiffs ’ ad­
mitted possession of all the necessary qualifications, these 
defendants have denied plaintiffs’ admission to said School 
of Law solely because of their race and color while at the 
same time admitting white applicants with equal or less 
qualifications than those possessed by plaintiffs.

16. That the University of North Carolina School of 
Law offers a degree of law sought by plaintiffs. They 
desire and are ready, willing and able to pay the University 
requisite fee and to conform to all the lawful requirements, 
rules and regulations for admission.

17. That the policy, custom and usage of the defendants 
and each of them of providing and maintaining legal train­
ing and facilities at and in the aforesaid school of law for

Complaint



6

white citizens of the state out of public funds while failing 
and refusing to provide adequate legal training and facili­
ties for plaintiffs and other qualified Negro residents of the 
state wholly and solely on account of their race and color 
is an unlawful discrimination and constitutes a denial of the 
right of plaintiffs and other qualified Negroes to the equal 
protection of the laws in contravention of the Fourteenth 
Amendment to the United States Constitution.

18. By virtue of such wrongful actions and illegal 
customs and usages on the part of the defendants and 
each of them, plaintiffs are damaged and have no adequate 
remedy at law.

W herefore, plaintiffs respectfully pray this Court:
(1) That the Court adjudge and decree and declare the 

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

(2) That this Court enter a judgment or decree declar­
ing that the policy, custom and usage of the defendants in 
refusing admission as students to plaintiffs and other quali­
fied Negroes to the School of Law of the University of 
North Carolina solely on account of their race and color is 
unconstitutional and violative of the Fourteenth Amend­
ment of the United States Constitution.

(3) That this Court issue a permanent injunction for­
ever restraining and enforcing the defendants and each 
of them from denying to plaintiffs possessing the qualifica­
tions for admission to the Law School of the University of 
North Carolina solely because of color.

(4) That this Court will allow plaintiffs their costs 
herein and such further other additional or alternative

Complaint



relief as may appear to the Court to be just and equitable 
in the premises.

7

Answer

C. 0 .  P earson

203% East Chapel Hill Street 
Durham, North Carolina

R obert L. Carter 
T httrgood M arshall  

20 West 40th Street 
New York, New York
Attorneys for Plaintiffs

Answer

The defendants, answering the complaint herein filed, 
allege and say:

1. (a) It is denied that the jurisdiction of this Court 
can be properly invoked under Section 24 (1) of the Judi­
cial Code (28 U.S.C.A., Section 41 (1)), and it is denied 
that this is a suit which can arise under the Constitution 
and laws of the United States, to wit: the Fourteenth 
Amendment of said Constitution and Sections 41 and 43 of 
Title 8 of the United States Code. It is further denied that 
the matter in controversy involves any sum of money what­
ever, and it is further denied that the matter in controversy 
exceeds, exclusive of interest and costs, the sum of $3,000.

(b) It is denied that the jurisdiction of this Court can 
properly be invoked under Sections 24 (14) of the Judicial 
Code (28 U.S.C.A., Section 41 (14)), as it is expressly 
denied there has been any deprivation by the defendants, 
under color of law, statute, regulation, custom or usage of



8

rights, privileges and immunities secured to plaintiffs by 
the Constitution or laws of the United States.

2. It is admitted that the plaintiffs seek to secure a 
declaratory judgment and injunction as alleged in Section 
2 of the complaint, but it is denied that there is any basis 
for a controversy between the parties to this action.

(a) It is denied that any custom or practice exists on 
the part of the defendants or any of them of denying, on 
account of race and color, to the plaintiffs or to any other 
negro residents of this State, the right to receive educa­
tional advantages equivalent to those offered to other resi­
dents at the University of North Carolina, and it is denied 
that any unconstitutional act has been done by the defend­
ants, or any of them, with respect to said matters in viola­
tion of the Constitution of the United States or any part 
thereof.

(b) It is denied that any custom or practice exists on 
the part of the State of North Carolina or defendants, or 
any of them, of denying, on account of race and color, to the 
plaintiffs or any other negroes who are residents of this 
State, access to the educational facilities at the University 
of North Carolina Law School without providing substan­
tially equal facilities elsewhere in this State. It is alleged 
that the State of North Carolina maintains, and has main­
tained since 1940 at great expense, at North Carolina Col­
lege at Durham, a School of Law at which are provided 
facilities substantially equal to those provided at the Uni­
versity of North Carolina Law School for the purpose of 
furnishing legal education to negro residents of the State 
qualified for admission to said school.

3. The allegations contained in Section 3 of the com­
plaint are admitted, except, upon information and belief,

Answer



9

Answer

it is denied that Bobert Davis Glass is a resident of this 
State.

4. It is denied that this is a class action authorized 
under Buie 23A of the Buies of Civil Procedure for the 
District Courts of the United States, or that any rights are 
here involved which justify or authorize institution of any 
class action by these plaintiffs. Section 4 is denied.

5. It is admitted that the plaintiff, Harold Thomas 
Epps is a negro and a citizen of the United States, State 
of North Carolina, and is presently a third-year student 
in the School of Law of the North Carolina College at 
Durham, a State educational institution maintained and 
operated by the State of North Carolina. Except as ad­
mitted in this Answer, Section 5 of the complaint is denied.

6. It is admitted that the plaintiff, Bobert Davis Glass, 
is a negro and a citizen of the United States, but it is 
denied, upon information and belief, that he is a resident 
of the State of North Carolina. It is admitted that he is 
presently a second-year student in the School of Law of 
the North Carolina College at Durham, a State educational 
institution operated and maintained by the State of North 
Carolina. Except as admitted in this Answer, Section 6 of 
the complaint is denied.

7. It is admitted that the defendant, William Donald 
Carmichael, Jr., is the Acting President of the University 
of North Carolina and is the administrative head of the 
University of North Carolina on account of the said posi­
tion. Except as contrary to the facts herein alleged, Sec­
tion 7 of the complaint is admitted.

8. It is admitted that the defendant, Henry P. Brandis, 
Jr., is now and has been since July 1, 1949 the Dean of



10

the University of North Carolina Law School, is the chief 
administrative official of said Law School, and is charged 
with the duty of passing upon the academic qualifications 
of applicants for admission to the School. It is alleged 
that, at the time plaintiffs’ applications were submitted to 
the Law School and returned to them, defendant Henry P. 
Brandis, Jr. was not Dean of the Law School and had no 
official duties in connection with said applications. Except 
as herein admitted, the allegations contained in Section 8 
of the complaint are denied.

9. It is admitted that Lee Roy Wells Armstrong is 
Director of Admissions of the University of North Carolina, 
but it is alleged that the duty of passing upon the academic 
qualifications of ajoplicants to the Law School is delegated 
to the Dean of the Law School. Except as herein admitted, 
Section 9 of the complaint is denied.

10. It is admitted that the defendant, Arch T. Allen, is 
the Secretary of the Board of Trustees of the University 
of North Carolina, which Board of Trustees has such over­
all control of the affairs of the University as is provided 
by law. It is admitted that the Board of Trustees of the 
University of North Carolina is declared to be a body 
politic and corporate to be known and distinguished by the 
name of the “ University of North Carolina”  as provided 
in the General Statutes of North Carolina 116-3. Except 
as herein admitted, Section 10 is denied.

11. It is admitted that the Board of Trustees of the 
University of North Carolina is declared to be a body politic 
and corporate and as such is known and distinguished by 
the name of the “ University of North Carolina.”  It is 
admitted that the University of North Carolina may sue 
and be sued to the extent and insofar as is authorized by

Answer



11

the provisions of G. S. 116-3. Except as herein admitted, 
Section 11 is denied.

12. Section 12 of the complaint is not denied.

13. It is admitted that the State of North Carolina has, 
by law, established and maintained over the years, and is 
now maintaining, a School of Law at the University of 
North Carolina as a part of its higher educational system. 
It is admitted that said Law School is supported by means 
of public funds. It is denied that there is no other .Law 
School maintained and operated out of public funds of 
the State where the plaintiffs can secure educational advan­
tages and facilities substantially equivalent to those main­
tained at the University of North Carolina School of Law. 
It is alleged, on the contrary, that the plaintiffs are now 
receiving at the State-maintained institution, The North 
Carolina College at Durham, at the School of Law at said 
institution, educational advantages and facilities substan­
tially equivalent to those provided at the University of 
North Carolina School of Law. The plaintiffs have here­
tofore applied for admission as law students to the Law 
School of the North Carolina College at Durham and, based 
upon their applications, have been, accepted as law students 
at said institution, the plaintiff, Harold Thomas Epps, being 
a third-year law student therein and the plaintiff, Robert 
Davis Glass, being a second-year law student therein.

14. It is admitted that the Board of Trustees of the 
University of North Carolina is, by law, authorized and 
empowered to maintain, operate and supervise a School of 
Law at the University of North Carolina, which School of 
Law has been established for the purpose of teaching law 
and preparing such persons as are eligible for enrollment 
therein for the legal profession. It is admitted that the

Answer



12

Dean in said Law School is authorized and empowered by 
the Board of Trustees to pass upon the scholastic qualifica­
tions of applicants for admission of persons who may apply 
for admission to the said Law School. Except as herein 
admitted, Section 14 of the complaint is denied.

15. It is admitted that the plaintiffs, while attending 
the School of Law at the North Carolina College at Durham 
and after being* duly enrolled at the said Law School, filed 
applications for admission to the School of Law.of the Uni­
versity of North Carolina, such applications being* accom­
panied with records of their past academic achievements, 
and other information. In response to said applications, 
the plaintiffs were advised by Robert H. Wettaeh, then 
Dean of the Law School of the University of North Carolina, 
that they were returned as the State of North Carolina 
provided for negro residents of the State a School of Law 
at the North Carolina College at Durham which the plain­
tiffs well knew since, at said time, both of them were regu­
larly enrolled and regularly attending the said Law School.

16. It is admitted that the University of North Carolina 
School of Law offers a degree of Bachelor of Laws upon 
the successful completion of three years’ work in the said 
Law School which is the same degree which is offered by the 
North Carolina College at Durham School of Law, which 
the plaintiffs are now attending and which they were attend­
ing at the time they applied for admission to the Law School 
of the University of North Carolina. The defendants have 
no knowledge nor information sufficient to form a belief 
as to whether the plaintiffs desire and are ready, willing 
and able to pay the University the required fees for admis­
sion to its Law School. Except as herein admitted, Section 
16 is denied.

Answer



13

17. Section 17 of the complaint is denied.

18. Section 18 of the complaint is denied.

W herefore, the defen dan ts resp ectfu lly  p r a y :

(1) That the plaintiffs ’ action he dismissed, and that the 
Court adjudge that the plaintiffs are not entitled to any 
of the relief therein prayed for.

(2) It is further prayed that the defendants recover 
their cost in this behalf expended.

The defendants, above-named, pursuant to the Federal 
Rules of Civil Procedure, and any applicable Federal con­
stitutional provisions or statutes, do hereby demand trial 
hy jury upon all issues raised by the pleadings in this case 
or that may be raised by the evidence in this case when 
the same is heard.

H arry  M cM u llen  
Attorney General of North Carolina 

Address: Justice Bldg., Raleigh, N. C.

R a l p h  M o o d y

Assistant Attorney General 
Address: Justice Bldg., Raleigh, N. C.

W illiam : B. U mstead 
Address: Durham, N. C.

Answer

L. P. M cL endon 
Address: Greensboro, N. C.

Attorneys for Defendants.

(Verified by William Donald Carmichael on December 
7, 1949.)



u

To the Judge of the District Court of the United States 
for the Middle District of North Carolina, Durham Divi­
sion:

Floyd B. McKissick, Sol Revis, Harvey Beech, Walter 
Nivins, Perry B. Gilliard, James Lassiter, your petitioners 
respectfully move this court for an order allowing them as 
members of the class on behalf of which this action is 
brought to intervene as party-plaintiffs and respectfully 
allege and show as follows:

1. Petitioners are students presently attending North 
Carolina College, School of Law at Durham, North Caro­
lina. They are all citizens of the United States, residents 
of North Carolina and persons of African descent. Each 
of these petitioners, has applied individually and on behalf 
of himself for admission to the School of Law of the Univer­
sity of North Carolina and each has been denied admis­
sion to said University solely because of his race and color.

2. The above entitled cause was commenced by service 
of the original complaint on defendants, William Donald 
Carmichael, Jr., Acting President of the University of 
North Carolina; Henry P. Brandis, Jr., Dean of the School 
of Law of the University of North Carolina; Lee Roy Wells 
Armstrong, Director of Admissions of the University of 
North Carolina; Arch T. Allen, Secretary of the Board of 
Trustees of the University of North Carolina; and the 
University of North Carolina, a body incorporate on the 
25th day of October, 1949. The cause has not yet come to 
trial but has been continued by consent of both parties until 
the first week in April 1950. On February 8, 1950 this

Motion of Floyd B. McKissick, Sol Revis, Harvey
Beech, Walter Nivins, Perry B. Gilliard,

James Lassiter to Intervene



15

court is scheduled to hear argument on motion to strike 
this case from the jury calendar.

3. The complaint in this action seeks a declaratory 
judgment declaring the legal rights and relations of the 
parties hereto and an injunction enjoining the defendants 
from refusing to admit the original plaintiffs to the Law 
School of the University of North Carolina, solely because 
of their race and color, in violation of the 14th Amendment 
to the Federal Constitution. The answer to said complaint 
sets up the defense that a separate law school has been pro­
vided by the State of North Carolina for plaintiffs, in which 
they may receive, and are receiving, a legal education sub­
stantially equal to that provided by the University of North 
Carolina.

4. Petitioners have a right to intervene in the litigation 
in the above entitled cause of action against defendants 
herein on the ground that: 1) they are members of the class 
on behalf of which the original action is brought; 2) the 
present plaintiffs may not adequately represent their in­
terests for the reason that one of these plaintiffs is a third- 
year law student at North Carolina College at Durham and 
may graduate before final adjudication of this action; 3) de­
fendants have raised a substantial question concerning the 
residence of the other plaintiff ; 4) they have a substantial 
interest in the subject matter of the action; 5) their in­
terest and the main action have questions of law and fact 
in common; 6) their intervention will not to any extent 
delay or prejudice the adjudication of the rights of the 
original parties; 7) said right to intervene arising out of 
the facts alleged in your petitioners proposed complaint 
of intervention as intervenors, a copy of which is attached 
hereto.

Motion of Floyd B. McKissicJc, Sol Revis, Harvey Beech,
Walter Nivins, Perry P>. Gilliard, James Lassiter

to Intervene



1 6

5. The interest of petitioners in the above entitled suit is 
such that their intervention in this cause is necessary to 
the protection of their interest alleged in paragraph 4 be­
cause of the following facts:

1) The present applicants for intervention are all stu­
dents qualified for admission to the School of Law of 
the University of North Carolina.

2) Each of them has been denied admission solely be­
cause of his race and color by defendants herein.

3) Each of them is a member of the class which the 
original plaintiffs represent.

4) The original plaintiffs may fail for the reason that 
one of them is about to graduate from the School of 
Law of North Carolina College at Durham, and the 
other may be found to be not a resident of North 
Carolina.

5) If the original plaintiffs fail even though they have 
brought a class action, the cause of action fails, un­
less some other member of the class duly intervenes 
as plaintiffs.

W herefore p e tition ers  p ra y  that th is cou rt m ake an 
o rd e r  g ra n tin g  them  leave to  file the attached  com pla in t 
o f  in terven tion  h erein  again st sa id  de fen d an ts  and f o r  such 
oth er and fu rth er  re lie f as to  th is cou rt seem  ju st.

Dated 1950

Motion of Floyd B. McKissick, Sol Revis, Harvey Beech,
Walter Nivins, Perry B. Gilliard, James Lassiter

to Intervene

C onrad 0 .  P earson 
R obert L. Carter 

Attorneys for Petitioners



To the Judge of the District Court of the United States 
for the Middle District of North Carolina, Durham Divi­
sion:

J. Kenneth Lee, your petitioner, respectfully moves this 
Court for an order allowing him, as a member of the class 
on behalf of which this action is brought, to intervene as a 
party-plaintiff, and respectfully alleges and shows as fol­
lows :

Motion of J. Kenneth Lee to Intervene

1. Petitioner is a student presently attending North Caro­
lina College School of Law, at Durham, North Carolina. 
He is a citizen of the United States, a resident of North 
Carolina and a person of African descent. He has applied 
individually and on behalf of himself for admission to the 
School of Law of the University of North Carolina and has 
been denied admission to said University solely because of 
his race and color.

2. The above entitled cause was commenced by service of 
the original complaint on defendants, William Donald Car­
michael, Jr., Acting President of the University of North 
Carolina; Henry P. Brandis, Jr., Dean of the School of Law 
of the University of North Carolina; Lee Roy Wells Arm­
strong, Director of Admissions of the University of North 
Carolina; Arch T. Allen, Secretary of the Board of Trustees 
of the University of North Carolina; and the University 
of North Carolina, a body incorporate on the 25th day of 
October, 1949. The cause has not yet come to trial but is 
scheduled for trial on August 28, 1950.

3. The complaint in this action seeks a declaratory judg­
ment declaring the legal rights and relations of the parties 
hereto and an injunction enjoining the defendants from re­
fusing to admit the original plaintiffs to the Law School



18

of the University of North Carolina, solely because of their 
race and color, in violation of the 14th Amendment to the 
Federal Constitution. The answer to said complaint sets 
up the defense that a separate law school has been provided 
by the State of North Carolina for plaintiffs, in which they 
may receive, and are receiving, a legal education substan­
tially equal to that provided by the University of North 
Carolina.

4. Petitioner has a right to intervene in the litigation in 
the above entitled cause of action against defendants here­
in on the ground that: 1) he is a member of the class on be­
half of which the original action is brought; 2) he has a 
substantial interest in the subject matter of the action; 3) 
his interest and the main action have questions of law and 
fact in common; 4) his intervention will not to any extent 
delay or prejudice the adjudication of the rights of the 
original parties; 5) said right to intervene arising out of 
the facts alleged in your petitioners proposed complaint 
of intervention as intervenors, a copy of which is attached 
hereto.

5. The interest of petitioner in the above entitled suit is 
such that his intervention in this cause is necessary to the 
protection of his interest alleged in paragraph 4 because of 
the following facts:

1) The present applicant for intervention is a student 
qualified for admission to the School of Law of the 
University of North Carolina.

2) He has been denied admission solely because of his 
race and color by defendants herein.

3) He is a member of the class which the original plain­
tiffs and the plaintiffs by intervention represent.

Motion of J. Kenneth Lee to Intervene



19

4) If the original plaintiffs and the plaintiffs by inter­
vention fail even though they have brought a class 
action, the cause of action fails, unless some other 
member of the class duly intervenes as plaintiff.

W herefore, petitioner prays that this Court make an 
order granting them leave to file the attached complaint of 
intervention herein against said defendants and for such 
other and further relief as to this Court seem just.

Dated August 27, 1950.

Motion of J. Kenneth Lee to Intervene

C onrad 0 .  P earson 
R obert L. Carter 

Attorneys for Petitioner



20

Answer to Complaint of Intervenors

Defendants, answering the Complaint of the Inter­
venors, Floyd B. McKissiek, Sol Revis, Harvey Beech, 
Walter Nivins, Perry B. Hilliard and James Lassister, 
allege and say:

1. In answer to Section 1, defendants refer to the Com­
plaint and Answer filed in this case for the allegations 
therein contained. Except as therein shown to be true, 
the allegations in Section 1 of the Complaint are denied.

2. The Complaint and Answer heretofore filed in this 
cause are referred to for their contents and allegations. 
Except as therein shown to be true, the allegations in Sec­
tion 2 of the Complaint are denied.

3. Section 3 of the said Complaint is not denied.

4. Answering the allegations of Section 4 of the Com­
plaint of the Intervenors, the defendants say that it is not 
denied that the intervenors, all Negroes and citizens of the 
United States, are also citizens of the State of North Caro­
lina, except that it is denied that the intervenor, Perry 
Gilliard, is a citizen of North Carolina; it is further not 
denied that said intervenors are presently enrolled in the 
School of Law of the North Carolina College at Durham; 
it is further not denied that the intervenors, Revis and 
McKissiek, possess the academic qualifications for admis­
sion to the Law School of the University of North Caro­
lina, and it is further not denied that the intervenors, 
Gilliard, Lassiter, McKissiek and Revis, at the time of 
making their motion to intervene, had applied for admis­
sion to the Law School of the University of North Carolina 
and were denied admission to the same. Except as herein 
admitted, the allegations of said paragraph are denied.



21

Answer to Complaint of Intervenors

5. Paragraph 5 of the Complaint of the Intervenors 
requires no specific answer except that in general denial 
thereof, the defendants herein adopt and make reference 
to their Answer heretofore filed in this cause.

W herefore, having fully answered, the defendants re­
spectfully refer to and repeat the prayer contained in their 
original Answer and further pray that they go without 
day and recover their costs and for such other and further 
relief as the Court may deem just and proper.

H arry M cM u llan

Attorney General of North Carolina 
Address: Justice Bldg., Raleigh, N. C.

R a lph  M oody .
Assistant Attorney General 

Address: Justice Bldg., Raleigh, N. C.

\Y. B. U msteab 
Address: Durham, N. C.

L . P . M cL endon  
Address: Greensboro, N. C.

J. C. B. E h rin g h au s  
Address: Raleigh, N. C.



22

Excerpts From Testimony

IN THE DISTRICT COURT OF THE UNITED STATES
F ob t h e  M iddle D istrict  of N orth C arolina—  

D u r h a m  D ivision

Civil Action No.........

H arold T homas E pps  and R obert D avis G lass, Et Al.,
Plaintiffs,

v.
W illiam  D onald C arm ich ael , Jr,, President of the Uni­

versity of North Carolina; H en ry  P. B randis, J r ., Dean 
of the Law School of the University of North Carolina; 
L ee R oy W ells A rm strong , Director of Admissions of 
the University of North Carolina; A rch T. A l l e n , Sec­
retary of the Board of Trustees of the University of 
North Carolina; and the U n iversity  of N orth  Caro­
l in a , a Body Incorporate.

The above-entitled action came on to be heard before 
His Honor, Johnson J. Hayes, United States Judge for the 
Middle District of North Carolina, at Durham, North Caro­
lina, on Monday, August 28, 1950, in the Court Room of the 
United States Post Office and Court House Building.
A ppearances :

C. O. P earson , Durham, N. C.; T piurgood M arshall , 
New York, N. Y .; R obert L. Carter, New York, 
N. Y .; and S pottswood  W. R obinson , III, Rich­
mond, V a.; for the plaintiffs.

Hon. H arry  M cM u l la n , Attorney General of North 
Carolina; Hon. R alph  M oody, Assistant Attorney. 
General; W. B. U mstead , Durham, N. C.; L. P. 
M cL endon , Greensboro, N. C.; J. C. B . E h r in g - 
hatts, Raleigh, N. C.; and W. P. B r in k le y , Raleigh, 
N. C.; for the defendants.



23

Colloquy of Court and Counsel

(3 ) P roceedings

The Court: Are the plaintiffs ready!
Mr. Carter: Ready, your Honor.
The plaintiffs filed this morning with the Clerk, and 

served notice on the defendants, a motion to intervene on 
behalf of J. Kenneth Lee, who wants to intervene as a 
party plaintiff.

Mr. McMullan: We would like to be heard on that.
The Court: Have you given a copy to the defendants!
Mr. Carter: Yes, sir, this morning.
The Court: Why did you wait until this morning?
Mr. Carter: The intervenor just appeared and desired 

to intervene. There are the same issues involved as in the 
main case.

The Court: I granted your motion for the intenven- 
tion of five or six other plaintiffs, didn’t I—F'loyd B. Mc- 
Kissick, Sol Revis, Harold Beech, Walter Nivins, Perry 
Gilliard and James Lassiter!

Mr. Carter: Yes, sir. The reason the motion is being 
made at this time, your Honor, is that the present inter­
venor is a beginning law student. One of the original plain­
tiffs in this action, Harold Epps, has graduated from the 
Law School of North Carolina College. In order to ade­
quately protest the interest Mr. Lee has in the action, we 
thought it necessary to make this motion.

(4) The Court: What is the objection?
Mr. McMullan: This is a new name and it takes some 

time to investigate these parties, their educational require­
ments and whether they are residents of North Carolina. 
They have to be investigated by the faculty over at the 
University.

Mr. Carter: If I might say a word, Your Honor, this 
Mr. Lee applied for admission to the University of North 
Carolina School of Law; he secured an application from



24

the school, and the same thing that happened in the other 
instances happened in his instance, that his application was 
returned by the Dean of the Law School on the ground 
there was a school for Negroes at North Carolina College.

The Court: Where does he live?
Mr. Carter: At Greensboro, North Carolina; he is a 

citizen and resident of the State.
The Court: When was his application returned?
Mr. McMullan: We don’t known anything about it. The 

name has never been presented to us at all.
Mr. Carter: His application, your Honor, was re­

turned on the 27th of June by Dean Brandis, of the Univer­
sity.

The Court: Well, I will tentatively allow it, and if you 
can show me it is any prejudice to the defendants I will 
strike it out. I don’t see that it makes any difference one 
way or the other, substantially. If we don’t let him inter­
vene now (5) he can bring another suit. If it causes any 
delay we will give you whatever time is necessary.

Mr. McMullan: We want to file answers to the inter­
ventions of all these other plaintiffs.

The Court: Proceed with the evidence for the plain­
tiffs.

Mr. Carter: Your Honor, preliminarily, I would like 
to get several other points cleared up, if I may.

In the answer which was filed to the complaint, the de­
fendants have admitted that the plaintiffs McKissick, Niv- 
ins and Revis are citizens of the United States and the State 
of North Carolina; that they applied for admission to the 
Law School of the University of North Carolina and that 
they were refused admission because of race and color. 
These two plaintiffs are here ready to testify, but, in order 
to save time, I would assume that the defendants would 
admit those facts to be uncontroverted and established by 
the answer.

Colloquy of Court and Counsel



25

The Court: If they are admitted that establishes it. 
I will take whatever facts are admitted by the pleadings. 
They are already before the Coui’t.

Mr. Carter: All right, sir. The same thing would apply 
to another intervenor, James Lassiter, We will ask Mr. 
Lassiter to go to the stand to establish his academic quali­
fications, but the defendants have admitted that he is a 
citizen of the United States and of the State of North Caro­
lina and that he (6) applied for admission to the North 
Carolina University School of Law and was refused be­
cause of race and color. They have not admitted that he 
is qualified; they make no admission or denial in that re­
gard.

Tour Honor, there is just one more preliminary with 
regard to the status of the various plaintiffs. The original 
plaintiff, Harold Thomas Epps, has now completed his 
course at the North Carolina College Law School—

The Court: When did he graduate?
Mr. Carter: In June, I believe. In view of that fact, 

we would like permission to withdraw him as a party plain­
tiff, without prejudice.

The Court: All right, sir.
Mr. Carter: Robert Davis Glass, another original plain­

tiff, after the filing of the complaint in which it was alleged 
that he was a citizen of the State of North Carolina, ap­
plied for and received out-of-state aid from the State of 
Alabama, which is only eligible to citizens of Alabama. 
Subsequently, on advice of counsel, he sought to return 
that aid. Glass has maintained a continuous residence in 
the State of North Carolina since that time. That hap­
pened last summer. As far as the rules of the University 
of North Carolina are concerned, we think that he is a resi­
dent. However, we think that his presence in the case 
would give rise to objections and injections not (7)

Colloquy of Court and Counsel



26

primarily concerned with the issues involved, and would 
like permission to withdraw his name without prejudice.

The Court: All right, sir.
Mr. Carter: In the motion to intervene which the Court 

granted on February 8th the names of Harold Beech and 
Walter Nivins appeared through error.

The Court: I don’t find in the file, Mr. Clerk, the order 
allowing this other intervention. I don’t see it in the papers. 
The Clerk’s minutes show I granted the order of interven­
tion and the complaint was ordered filed, but it seems there 
was no written order filed at the time. The order was 
granted here in open court, and I suppose that’s the rea­
son there was no written order about it. Let’s come to your 
intervenors. What is it you say about them?

Mr. Carter: Harold Beech and Walter Nivins, who are 
named in the motion, appear through error. Although they 
originally expressed a desire to intervene, they withdrew 
and did not make application to the University of North 
Carolina.

The Court: They ask to withdraw; is that right?
Mr. Carter: Yes, sir.
The Court: That is allowed.
Mr. Carter: The final one in the same motion, Perry 

Gilliard, it appears that he will not be present during the 
course of the hearing, and therefore we would like to with- 
(8) draw as to him.

The Court: That is three of the intervenors who have 
withdrawn ?

Mr. Carter: Yes, sir. That leaves as parties plaintiff 
Floyd McKissick, Sol Revis, James Lassiter, and the inter- 
venor who was allowed to intervene this morning, J. Ken­
neth Lee.

The Court: That leaves us with four plaintiffs; is that 
right now?

Mr. Carter: Yes, sir.

Colloquy of Court and Counsel



27

Now with regard to the order, if the Court desires us to 
draw an order of intervention and file it as of February 
8th, we will do so.

The Court: I think it ’s sufficient. The Clerk’s minutes 
show that the Court allowed it in open court. It is customary 
to have a written order to that effect, hut it was done in 
open court and we can supply that at any time.

Mr. Carter: We would like to invoke Rule 43(b) of 
Federal Procedure and call William Donald Carmichael, 
Jr., Acting President of the University of North Carolina.

The Court: Let him come around.

William D. Carmichael, Jr.—for Plaintiffs—Direct

(9) WILLIAM D. CARMICHAEL, JR., called as a 
witness by the plaintiffs, being duly sworn, testified as 
follows:

Direct examination by Mr. Carter:

Q. Mr. Carmichael, would you state your name and 
occupation, for the record, please, sir? A. William D. 
Carmichael, Junior; Comptroller of the University of North 
Carolina; now Acting President.

Q. How long, sir, have you been Acting President? A. 
Since March, 1949.

Q. You are at present acting in that capacity? A. Yes.
Q. Mr. Carmichael, who establishes the over-all policy 

affecting the University of North Carolina? A. The Legis­
lature of the State of North Carolina.

Q. Do you have any policy regarding the admission 
of Negroes to the University of North Carolina, and par­
ticularly to the Law School of the University of North 
Carolina? A. No written policy.

Q. Do you have a policy? A. We have a policy which 
is implicit in the establishment by the Legislature of



28

Negro institutions in this state, and the mores and customs 
long observed, which have for many years implied (10) 
that Negroes would be sent to North Carolina College, to 
the A. & T. College, and that white students would go to 
the three institutions of the Consolidated University.

Q. Then, as I take it, as you understand the policy and 
as you enforce the policy, your policy is to refuse to admit 
Negroes to the University of North Carolina? A. I would 
say that is the practice, rather than any explicit written 
policy.

Q. Regardless of their qualifications? A. Right.
Q. Mr. Carmichael, do you have any policy regarding 

the admission of students of other racial groups to the 
University of North Carolina? A. I would say no. As a 
matter of fact, I don’t think we have any policy in regard 
to any. As I said before, we don’t have any policy in 
regard to any, that is, written policy.

Q. Let’s call it practice, then. Do you have any prac­
tice in regard to the admission of students of other racial 
groups? A. The only one that I would recall at the moment 
would be the one with regard to Indians from Robeson 
County and that vicinity.

Q. What is that policy, that practice? A. There is a 
special school for them known as Pembroke College, which 
was established for members of that race.

(11) Q. Do you have any practice with regard to the 
admission of students to the University of North Carolina 
with any ancestry other than that of a Negro? A. No.

Q. Then am I correct in assuming, sir, that the practice 
of the University of North Carolina is to admit all racial 
groups to the University except Negroes, with the other 
exception you mentioned with regard to Indians from Robe­
son County? A. So far as I know, I know of no others 
who have been excluded.

Mr. Carter: Your witness.

William D. Carmichael, Jr.—for Plaintiffs—Direct



29

Mr. McMullan: If your Honor pleases, we would 
like to excuse the witness with the understanding 
we can call him back later on.

The Court: All right.
(Witness excused.)
Mr. Carter: Your Honor, we would again like

to invoke Rule 43-(b) and call Lee Roy Wells Arm­
strong, the Director of admissions of the University 
of North Carolina,

Mr. McMullan: I understood, Counsellor, he was 
excused because he didn’t know anything about it,

Mr. Pearson: It was our understanding he was 
excused from the taking of the depositions to go to 
the beach to get his wife. We did not intend to 
excuse him from the trial.

Mr. McMullan: Did you have him subpoenaed
here for today?

(12) Mr. Pearson: No, sir.
The Court: He is not under subpoena?
Mr. Pearson: No, sir, he wasn’t.
The Court: Call your next witness.

J. Kenneth Lee—for Plaintiffs—Direct

J. KENNETH LEE, called as a witness by the plain­
tiffs, being duly sworn, testified as follows:

Direct examination by Mr. Pearson:
Q. State for the record your name and where you live. 

A. J. Kenneth Lee; and I live in Greensboro, North Caro­
lina.

Q. How long have you lived in Greensboro ? A. Eleven 
years.

Q. Will you please tell the Court where and when you



30

finished high school? A. I finished high school at Hamlet 
High School, Hamlet, North Carolina, in 1940.

Q. After finishing high school, will yon please tell the 
Court whether or not you pursued higher education? A. 
Yes. I attended A. & T. College at Greensboro, North 
Carolina.

Q. Will you please state whether or not you received a 
degree while you were there? (13) A. Yes, a B.S. degree. 

Q. B.S. in Engineering? A. That’s right.
The Court: What year?
The Witness: 1946.

Q. (By Mr. Pearson) Mr. Lee, will you jfiease tell the 
Court whether or not you ever applied to the University 
of North Carolina for admission to the School of Law? A. 
Yes, I applied this year.

Q. Do you remember the date or month? A. It was in 
June of this year. I don’t remember the exact date.

Q. How did you apply? A. I applied by letter.
Q. Did you ask them to send you an application blank? 

A. Yes.
Q. Did you receive an application blank? A. Yes.
Q. Is that the blank that you received (exhibiting to 

witness) ? A. Yes.
Q. What, if anything, did you do after you received 

that application? A. I completed the form and returned 
it to the University.

(14) Q. Who did you send it to? A. I sent it to the 
Dean of the Law School.

Q. Did you ever get a reply from your application? 
A. Yes.

Q. I hand you this and ask you if you know what it is. 
A. Yes.

Q. What is it? A. It is the reply received from the 
Law School.

J. Kenneth Lee—for Plaintiffs—Direct



31

Mr. Pearson: Yonr Honor, I would like to have 
this marked as Exhibit No. 1, the application, and 
No. 2, the letter he received from the University, 
and I offer them in evidence.

(The documents referred to were received in evi­
dence as Plaintiffs’ Exhibits 1 and 2, respectively.)

The Court: Let me see what the reply is.
Bead it.

Mr. Pearson: (Beading) “ Dear Mr. Lee: Your 
application for admission to this Law School is here­
with returned. As you know, our State maintains 
its Law School for our Negro residents at the North 
Carolina College at Durham, in which you have been 
enrolled. Sincerely yours, Henry Brandis, Ji\”  
Dated June 27, 1950.

Q. (By Mr. Pearson) Mr. Lee, you are now enrolled at 
the North Carolina College Law School? A. Yes, sir.

The Court: When did you apply for admission 
there ?

The Witness: At the North Carolina College
Law School?

(15) The Court: Yes.
The Witness: It was in December, 1949.
The Court: When were you admitted?
The Witness: February, 1950.
The Court: When did you enter that school?
The Witness: In February, 1950.
The Court: Gentlemen, I don’t want to anticipate 

too much, but I just wonder if the case isn’t finally 
coming right down to the question of whether the 
State is providing substantially equal facilities for 
higher education at the North Carolina College for 
Negroes with those which are offered at the Univer­

J. Kenneth Lee—for Plaintiffs—Direct



32

sity of North Carolina. In view of the President of 
the Greater University of North Carolina and of the 
letter by the Dean of the Law School here, it ap­
pears that at present Negroes are excluded from the 
Law School at the Greater University of North 
Carolina because facilities are provided at the North 
Carolina College for Negroes. Now, if that is the 
issue, why can’t we just save a lot of time by coming 
right down to a comparison and see whether the 
State is meeting its obligation in that regard? I am 
just asking counsel on both sides for a frank state­
ment, because it seems to me that is where we are 
arriving.

Mr. McMullan: Answering your Honor, as to
those who intervened in time, your Honor is entirely 
correct; there is no question about those who inter­
vened in time, but as to this one here there are other 
questions that will be raised. We have (16) ad­
mitted as to the others, who had made their standing 
and grades, that the State has provided for them a 
substantially equal opportunity for education at the 
North Carolina College Law School.

The Court: Mr. Attorney General, isn’t it also 
true, as far as this particular applicant is concerned, 
that if he is a citizen of North Carolina, if he made 
application for admission, he was denied admission 
on the ground he was already enrolled at the North 
Carolina College for Negroes?

Mr. McMullan: They wouldn’t admit anybody
who didn’t have a “ C”  average.

The Court: After receiving that letter from the 
Dean, what would be the use of pursuing it any 
further ?

Mr. McMullan: According to the information
I have, he does not have the qualifications.

J. Kenneth Lee—for Plaintiffs—Direct



33

The Court: Are there any questions you have 
of this plaintiff?

Mr. McMullan: Tour Honor, every one of these 
intervenors, original plaintiffs in this case, were 
students at the Law School of North Carolina Col­
lege. They went there voluntarily and were pur­
suing their studies at the time they applied to the 
University of North Carolina. We say they had 
made their selection, had been accepted there in good 
faith and were pursuing their studies at that insti­
tution. I don’t think you (17) will find in any 
other case where a student in an institution makes 
up his mind to shift in the middle of the term. If he 
had any rights he waived those rights by accepting 
benefits provided for him by the State.

Teh Court: All right; proceed with the examina­
tion of the witness.

Mr. Pearson: We pass the witness, with right 
to recall him.

Cross examination by Mr. McMullan:

Q. You say you went to A. & T. College and got your 
degree of B.S. there? A. Yes, sir.

Q. And in 1948 you made application to the North Caro­
lina College at Durham for admission to the Law School? 
A. No.

Q. In 1949? A. In 1950.
Q. You were admitted, were you, in 1950? A. I made 

the application to the North Carolina College Law School 
in December, 1949, and was admitted in February, 1950.

Q. You made the application in December, 1949, and 
were admitted in February, 1950? (18) A. Yes, sir.

Q. Did you make that application to North Carolina 
College in good faith for admission to the Law School? A. 
Yes.

J. Kenneth Lee—for Plaintiffs—Cross



34

Q. You wanted to go there? A. Yes.
Q. You had made some investigation of the facilities 

offered you at that Law School, had you not! A. Yes.
Q. And you found that it was a good law school, did you 

not? A. It was the only law school; I had no choice at the 
time.

Q. You found out it was a good school, did you not? 
A. Yes.

Q. And you were admitted there in February, 1950? 
A. Yes.

Q. Who was the Dean of that Law School at the time 
you were admitted! A. Dr. Turner.

Q. That is Dean Turner here? A. Yes, sir.
Q. Did you have any complaint about the way the Dean 

treated you when you were admitted?
Mr. Marshall: If Your Honor pleases, I object 

to this line of testimony. Any plaintiff in a case, any 
student, has a (19) right to change his school at 
any time he pleases for any reason he might have. 
As to what happened in the school, whether he knew 
the Dean, who the Dean was, I submit has nothing to 
do with the issues in this case. This first-year law 
school student can not be testifying as an expert as 
to what is an equal law school or good legal education.

The Court: He can testify to such facts as are 
in his personal knowledge.

Mr. Marshall: Every question, though, is a con­
clusion : Do you think you are getting a good educa­
tion ?

The Court: I think that’s competent. Objection 
overruled exception. Proceed.

Q. (By Mr. McMullan) How many students were there 
in the Law School of North Carolina College when you

J. Kenneth Lee—for Plaintiffs—Cross



35

were admitted? A. I know there were around twenty-eight. 
I am not sure of that.

The Court: Is that all years, first, second and 
third years?

The Witness: Yes, sir.

Q. How many students were in the average class of the 
courses you were taking? A. My classes averaged, I will 
say, about nine students.

Q. What courses did you take when you were first 
admitted? A. I took courses in torts, real property, criminal 
law, contracts.

(20) Q. Can you tell us who were the instructors you 
had in those courses? A. Yes.

Q. Tell us who they were, please. A. The course in 
contracts was taught by Dean Turner; the course in—

Q. Did you have any complaint about your teaching or 
treatment under Dean Turner? A. No. The course in 
torts was taught by Mr. Caldwell.

Q. Do you know what school Mr. Caldwell is a graduate 
of? A. No.

Q. Did you know he had a degree from the University 
of Denver? A. No.

Q. Did you have any complaints about the teaching and 
instruction you got at his hands? A. It ’s the first instruc­
tion of that type I ever had. I don’t know how to com­
pare it.

Q. Did you have any complaint about it? A. No, sir.
Q. Who were the others ? A. The course in criminal law 

was taught by Mr. Sanson.
Q. Do you know anything about his academic qualifica­

tions and experience as a teacher? (21) A. I understand 
he is a graduate of North Carolina College and is practicing 
here in the city.

J. Kenneth Lee—for Plaintiffs—Cross



36

Q. Did you Lave any complaint about the instruction 
you got at Lis hands ? A. TLe same as the others; I didn’t.

Q. All right, what is the next one? A. The legal writing, 
course in legal writing, was taught by Mr. Groves.

Q. Was he a good instructor, as far as you could tell? 
A. I thought he was.

Q. Do you know anything about his academic back­
ground and experience in teaching? A. No, I don’t.

Q. Who is the next one? A. The course in real prop­
erty was taught by Air. McCall.

Q. That is Air. Fred D. AlcCall, of the University of 
North Carolina? A. Yes.

Q. This gentleman sitting here? A. That’s right.
Q. Did you have any complaint about the instruction 

he gave you? A. Not at all.
Q. Does that cover them all? A. That covers them all.
(22) Q. Now at the time you were admitted to this 

institution—that is here in Durham, I believe—were they 
occupying the present law building, the one they are using 
at the present time? A. Yes, they were.

Q. How about that building; was that building adequate 
for your purposes in attending a law school? A. Well, 
there were classrooms there. I don’t know just what is 
adequate for a law school, but there were classrooms, there 
was a library. Now just what is an adequate library, I 
don’t believe I would be able to say.

Q. You say you had classrooms and a library? A. Yes.
Q. Can you tell his Honor how many books there were 

in the library? A. I am afraid I can’t. I have heard, of 
course, but I don’t know.

Q. You didn’t have a chance to read them all? A. No, 
not in four months.

Q. Do you understand there are about thirty thousand 
volumes in that library? A. I have heard something to 
that effect.

J. Kenneth Lee—for Plaintiffs—Cross



37

Q. Did you have any complaint at all about the library? 
A. No, I didn’t.

Q. Do you know the man who is the librarian there! 
A. Yes.

(23) Q. What is his name! A. Mr. Gray.
Q. Did he have an office there in the building? A. His 

office was in the library.
Q. Did you have occasion to call on him for assistance 

in the library? A. Yes, at times.
Q. Did you have any complaint about what service you 

got there? A. Well, sometimes there were some things I 
wanted to find that weren’t there, but I have no complaint 
about the service he offered me, what was there.

Q. What did you have complaint about that you wanted? 
A. There were some periodicals that were cited to us.

Q. Some magazines? A. Yes.
Q. Name one of them that you wanted you couldn’t get. 

A. Offhand I couldn’t do that.
Q. In your classes you say that you had an average of 

about nine, did you say? A. I would say that.
Q. On those classes how often would you be called on 

to recite or discuss some matter that came up? A. I would 
say an average of about once every two or three days.

(24) Q. What method of teaching did they follow at 
the North Carolina College Law School? A. As far as I 
understand it, the case system.

Q. Did you have any complaint about the method of 
teaching that was being followed? A. No.

Q. I don’t believe that you ever presented your certifi­
cate showing the grade that you made in law school to the 
University of North Carolina, did you? A. No; I was 
never asked for it.

Q. You had only been in law school from February 
until June when you first made your application? A. Yes.

J. Kenneth Lee—for Plaintiffs-—Cross



38

Q. Was it your reason in applying that yon wanted to 
get in the summer school that year? A. No.

The Court: Did you complete your course of
study in the subjects you were taking during the 
spring semester?

The Witness: At North Carolina College?
The Court: Yes.
The Witness: Yes, sir.

Q. (By Mr. McMullan) If you don’t go to the University 
Law School this fall are you planning to go hack to the 
North Carolina College Law School in Durham? A. I 
suppose so.

(25) Q. You like the study of law all right? A. So far.
Mr. McMullan: All right; come down.

(Witness excused.)
Mr. Carter: As our next witness, we would like 

to again invoke Rule 43(h) and call Dean Henry 
Brandis, Jr., of the University of North Carolina 
Law School.

Henry P. Brandis, Jr.—for Plaintiffs—Direct

HENRY P. BRANDIS, JR., called as a witness by the 
plaintiffs, being duly sworn, testified as follows:

Direct examination by Mr. Marshall:

Q. Dean Brandis, will you give your full name and posi­
tion, please, sir? A. Henry Parker Brandis, Jr., Dean of 
the Law School of the University of North Carolina.

Q, How long have you been Dean? A. Since July 1, 
1949.

Q. You succeeded Mr. Van Hecke? A. No; I succeeded 
Mr. Robert H. Wettach.



39

Q. How long have yon been a professor of law at the 
University of North Carolina? A. Professor of law, as I 
recall, since 1947. I take it you are talking about rank, 
literally ?

(26) Yes, I am talking* about, rank. And how long have 
you been teaching law at the University of North Caro­
lina? A. With the exception of the war years and one 
other semester, since 1940, a net total of around six years.

Q. Prior to that time had you had any teaching ex­
perience at any other law school? A. No.

Q. Approximately how many years would you say your 
experience has been in the teaching profession, the teach­
ing* of law? A. A net of around six years, maybe six and 
a half.

Q. What other work have you done? A. I practiced 
law in New York City for several years; I was with the 
Institute of Government, now a part of the University, at 
that time a separate institution.

Q. You mean of the University of North Carolina? A. 
Yes; at the time I was with it, it w*as not part of the Uni­
versity. For roughly four years I was Executive Secre­
tary of the State Taxation Classification Commission; I 
was Chief of the Research Division of the State Depart­
ment of Revenue; and I was for three and a half years in 
the United States Navy.

Q. Dean Brandis, you heard the testimony of the Act­
ing President as to the policy in regard to the admission 
or non-admission of Negroes to the University of North 
Carolina.

Do I understand that the admission of students to the
(27) Law School is under your jurisdiction and not the 
Registrar’s jurisdiction? A. There is no Registrar of the 
University of North Carolina.

Q. I mean the Director of Admissions. A. As a prac­
tical matter, that is correct.

Henry P. Brandis, Jr.—for Plaintiffs—Direct



40

Q. What is the policy of your office in relation to the 
racial restrictions, if any, as to the admission of students? 
A. We follow what we understand to he the policy of the 
State.

Q. Which is? A. Which is not to admit Negroes.
Q. Who do you classify as Negro? A. I don’t think I 

have ever had to make a decision on that problem.
Q. Well, let’s try this one. Assuming that a person 

otherwise qualified is of any racial group other than a 
Negro, is it not true that no question would be raised as 
to his admission? A. Actually I have never had to face 
that problem either because, since I have been Dean, I have 
had no application from any person whose racial situation 
might raise any question, so far as my personal experience 
is concerned there is no answer to it.

Q. As to your personal experience, if a person other­
wise qualified is not a Negro, you make no question as to 
what family (28) background he has, what ethnic group 
he belongs to, or anything else about his race or ancestry? 
A. So far as the applications I have processed so far, that 
is true.

Q. So that the only people who get a special treatment 
—and I am not speaking facetiously—who get disqualifica­
tion automatically on racial grounds are those who happen 
to fall within the racial group of Negro? A. That has been 
true within my limited experience. I think Mr. Carmichael 
mentioned one other that might lead to the same result.

Q. I understand there is no question as to the Indians 
from Robeson County; that hasn’t come up in your ad­
ministration so you do not know about that.

How long has the University of North Carolina Law 
School been in operation as the University of North 
Carolina Law School? A. I t ’s a little difficult to give a 
categorical answer, because the beginnings of the Law 
School go back to about 1845 when, with the approval of

Ilenry P. Brandis, Jr.—for Plaintiffs—Direct



41

the Trustees of the University, a Professorship of Law was 
established, but for many years the Professor of Law was 
not paid a salary by the University but received only fees 
from his students. He had no assistants. He was simply 
a Professor of Law, what might be called an adjunct of 
the University, and a question whether you could say (29) 
strictly a part of it. The Law School was not formalized 
into a school with a dean, as part of the University, until 
about 1900.

Q. And since that time it has operated as a law school! 
A. Yes.

Q. Dean Brandis, if you were comparing two law 
schools, or three or four, as to the caliber of the law school 
in regard to faculty and student body, what facts would 
you consider fair to be used in evaluating lawT schools! A. 
You are asking me to try to give a complete list, now!

Q. Maybe I can suggest some. Let’s see if we agree 
on them. The reputation of the school would be important, 
would it not! A. Yes, sir.

Q. Would not the length of years that the school had 
operated be considered in its reputation, as one of the 
factors of its reputation! A. Yes, sir.

Q. And is it not also true that the number of years 
alone is not enough; that there are other factors which 
would be taken into consideration—isn’t that true? A. 
Well, I take it that as to anything you raise we are agree­
ing that it is simply a factor. I f I say “ yes,”  it is very 
obvious we couldn’t make the decision on that alone.

(30) Q. Wouldn’t the type of faculty be a point to be 
considered! A. It would,

Q. In that would you include the experience as well as 
the background of the faculty members? A. I would.

Q. Would you include their government service, out­
side of their legal service—I mean legal government service 
in government agencies—as a factor? A. Yes. I would

Henry P. Brandis, Jr.—for Plaintiffs—Direct



42

like to say this: Of course I would want to know the par­
ticular type of service.

Q. Assuming it was connected with their teaching, with 
the same subjects they are teaching! A. For instance, my 
own government service was military service, and I 
wouldn’t regard that as a factor.

Q. Mr. Van Hecke’s experience with the War Manpower 
Commission helps him in his teaching! A. I agree.

Q. Would you not also consider the creative work done 
by a faculty in the writing of textbooks, case books on law, 
and reviewing articles! A. I would.

Q. Would you consider whether or not the school was 
a member of the Association of American Law Schools a 
point to be considered! (31) A. Yes, sir.

Q. And, of course, approval or non-approval of the 
American Bar Association! A. Yes.

Q. As between the two on that, which of the two groups 
has the strictest standards, the Association of American 
Law Schools or the American Bar Association! A. May I 
volunteer here that if I considered, as I would, membership 
in the Association, I would consider that against the back­
ground of whether or not the school had applied for mem­
bership!

Q. But, surely— A. In other words, a better criterion 
would be not actual membership, but whether it meets the 
standards of the Association.

Q. Do you know, off band, of any longstanding law school 
of high standing that doesn’t belong to the Association of 
American Law Schools! A. I have never investigated that 
question.

Q. You have been to the meetings of the Association! 
A. I have.

Q. Don’t you find the cream of the crop of the law-teach­
ing profession there! A .'I  suppose that is what we think 
we are.

Henry P. Branclis, Jr.—for Plaintiffs-—Direct



43

Q. Isn’t it true that in your rating, for example of stu­
dents, (32) isn’t it true that, as the University of North 
Carolina you don’t accept students from non-member 
schools for advanced standing? A. Yes, sir.

Q. It is true? A. Yes.
Q. There is a relationship between member schools of 

the Association, as such? A. Correct.
Q. And isn’t it true that there are schools approved by 

the American Bar Association that are not approved by the 
Association of American Law Schools? A. That is my im­
pression; I haven’t checked the two lists, but I believe that 
is true.

Q. Getting back to our reputation, would you consider 
the University and its reputation and its background, the 
University in general, as a part of the reputatoin of the 
Law School? A. I would.

Q. Would you include the reputation of the members of 
the alumni of the lawT school as a part of the reputation? A. 
In a limited sense, yes. May I explain what I mean by that?

Q. Surely. A. If a school has been operating over a 
considerable period of time, if its alumni have not made a 
reasonably good collective (33) reputation, then I would 
say that that is an indication you don’t have a very good 
law school; but if by the question you mean to imply can 
any school guarantee the reputation of its alumni, then I 
say “ No.”

Q. I agree with you on that, but I am assuming that from 
an attraction of students or attraction of faculty, or for the 
actual benefit to the student while in the school, the reputa- 
and these factors we have been discussing are important 
factors in a law school. A. On one thing I would have to 
disagree, Counsellor. I couldn’t say that the reputation of 
alumni has anything to do with benefit to the student while 
he is in school.

Henry P. Brandis, Jr.—for Plaintiffs—Direct



44

Q. I agree with you; I was using that for attracting 
students to the law school. Reputation of alumni tends to 
attract good students to a good school? A. I agree.

Q1. Now let’s get to the University of North Carolina 
Law School. It has been in existence since approximately 
1900 and it has a full faculty of how many members? A. 
Ten, including the Dean.

Q. A  law librarian and assistant law librarian? A. 
That’s right.

The Court: A faculty of ten?
The Witness: And the law librarian and assistant 

law (34) librarian are in addition to that ten.
The Court: How long have you had that large a 

faculty?
The Witness: Since 1948. Before the war we

had eight. Immediately after the war we reorganized 
and added one faculty man, which gave us nine,, and 
two years ago added, one more.

The Court: How many did you have during the 
war?

The Witness: At one time, I believe, for a rather 
brief period, the school was down to four, and for 
quite a while it operated with five.

The Court: You had almost as many faculty as 
you did students?

The Witness: Yes, sir. I understand it was
down to thirteen at one time. Incidentally, this is 
hearsay testimony; I was not there.

Q. (By Mr. Marshall) Will you explain briefly the 
recognized rank of law school teachers, not only in the 
University of North Carolina Law School but in other 
schools? I understand the top rank is professor? A. Cor­
rect.

Henry P. Brandis, Jr.—for Plaintiffs—Direct



45

Q. Just below that is associate professor? A. That’s 
right.

Q. And below that! A. Assistant professor.
Q. And instructors? (35) A. Some schools have them, 

but we have used it only sparingly. We have only the three.
Q. Isn’t it true that of your present faculty nine are full 

professors of law? A. That’s correct.
Q. And one is an assistant professor? A. That’s cor­

rect.
Q. So, so far as rank is concerned, nine-tenths of the 

faculty is in the highest bracket as to rank, at least? A. 
That’s correct.

Q. How about the experience in law teaching? You 
have given your own experience, but aren’t the members 
of the faculty of the Law School of the University of North 
Carolina in the category of experienced lav/ professors? 
A. With the exception of myself and Mr. Aycock, who is 
the most recent addition to our faculty; and possibly—this 
is a matter of judgment—Mr. Herbert Baer, whose total 
teaching experience is not too long in terms of years. The 
rest of our faculty have had a considerable amount of teach­
ing experience.

Q. Do you not consider the background and experience 
of faculty members and their rank, as to whether they are 
professor or down as low as instructor, a very important 
factor in evaluating a law school? A. I consider their ex­
perience and background a very important (36) factor. 
I consider their rank not so much a matter of whether they 
are good teachers as a matter of helping them if they are 
good teachers.

Q. In other words, no school would make a man a pro­
fessor unless he was of that caliber, with that experience 
and that background, would they? A. I don’t believe I can 
deal in that much of an absolute.

Henry P. Branclis, Jr.—for Plaintiffs—-Direct



46

Q. When you, in your own mind, think of the law schools 
you know about and come in contact with, do you not rate 
them consciously to a large extent on their faculty? A. Of 
course, if I know the faculty, I would tend to do that, par­
ticularly.

Q. How about the reputation of the faculty? A. If I 
didn’t know the factulty personally, of course I would con­
sider the reputation.

Q. And you would weigh that heavily, would you not? 
A. Yes, sir.

Q. Now, getting back to the faculty, do you know how 
considerable the creative writing has been of the members 
of the faculty as to law review articles? A. I don’t have 
any very strong personal recollection of it in detail. If you 
wish me to go into that, I think I can refresh my recollec­
tion on it.

Q. Does it rank with the recognized law schools? (37) 
A. On that I have made absolutely no comparison. I have 
never tried to find out how many comparative pages our 
faculty may have written as compared to some other.

Q. But if they didn’t— A. Most of our faculty has 
done a considerable amount of legal writing of one kind and 
another.

Q. Has that been in your own Law Review and other 
law reviews? A. Some have had publications in other law 
reviews; some have not.

Q. And some, of course, in your own Law Review? A. 
Yes, sir.

Q. How long has your Law Review been running? A. 
I would say since 1923, in that year.

Q. That Law Review has been issued, of course, con­
tinuously since that day? A. Yes.

Q. Now, getting to the school itself, I understand that 
the University of North Carolina Law School has been in

Henry P. Brandis, Jr.—for Plaintiffs—Direct



47

existence, the building, since the 1920’s. Is that correct? 
A. Yes.

Q. And you are now building an addition to it? A. 
That’s correct.

Q. A some four-hundred-thousand-dollar addition? 
(38) A. No—well, yes, roughly, something less than four 
hundred thousand.

Q. And it is a brick building? A. Yes.
Q. And it is a regular law school building; is that cor­

rect? Was it originally built as a law school? A. It was.
Q. And this addition is being built specifically to the 

specifications for a law school? A. That’s correct.
Q. I assume that the faculty, the Dean, took consid­

erable time in arranging on the plans of that school, that it 
would be to meet the needs of law school teaching. Isn’t 
that correct? A. They did.

Q. When that school is completed there would be no 
question, would there, that that will be a better building 
than an ordinary converted building?

Mr. McMullan: We object to the question of
possibilities.

The Court: That casts us out into the future.
This four-hundred-thousand-dollar building is not 
completed yet, is it?

The Witness: No, sir.
The Court: Ar they doing any work on it?
The Witness: Yes. They have been a little slow. 
(39) The Court: When will it be ready for use? 
The Witness: We hope in December of this year. 
The Court: The building that you are using, how 

much did it cost—or do you know?
The Witness: My recollection is that it only cost 

something in the neighborhood of a hundred and 
twenty thousand dollars, but I would have to in­

Henry P. Branclis, Jr.—for Plaintiff s—Direct



48

vestigate that. It is very much less than approxi­
mately the same amount of new building we are get­
ting now.

(By Mr. Marshall) Dean, in order not to get to a ques­
tion involving conjecture, have you seen the Law School 
building at the State College for Negroes? A. The one 
presently occupied?

Q. Yes, sir. A. I have not.
Q. Do you consider that a law school building is an es­

sential factor in evaluating a law school? A. I would say 
certainly the physical plant is an essential factor. I can 
conceive of a situation where in a rather large building 
part of it was for a law school it would be entirely adequate 
as physical plant.

Q. So long as you had adequate facilities for the student 
body and faculty, you would consider it adequate? A. Yes, 
from a physical standpoint.

(4) Q. Let’s see what we need for an adequate Law 
school. We first need adequate library space, do we not? 
A. Correct.

Q. That includes stacks, and adequate stacks, does it 
not? A. Yes.

Q. Doesn’t it also include considerable additional stack 
space for increase of sets of books? A. In the sense that 
that is what any law school man would like to have, yes. 
We haven’t had that until recently at the University.

Q. Will you have that? A. We will have that when it is 
completed.

Q. Would you consider adequate reading-room space 
as to number of students, and lighting is necessary? A. 
Yes.

Q. Will you have that when your school is completed? 
A. Yes.

Henry P. Brandis, Jr.—for Plaintiffs—Direct



Henry P. Brandis, Jr.—for Plaintiffs—Direct

Q. I understand you do not have adequate space now; 
you are overcrowded in the library? A. We are over­
flowed into temporary space, and this fall will have a con­
siderably bad situation,

Q. Which will be remedied in December? A. Which 
will be remedied in December.

Q. How about student lounges; do you consider them 
necessary? (41) A. Not absolutely necessary, but desir­
able.

Q. Do you have places where the students can get to­
gether outside the law school, outside the library, and hold 
bull sessions? A. Yes.

Q. You consider that desirable? A. Yes, I do. The 
reason I say it is desirable is that it is most convenient if 
it ’s present in the law school. If it ’s not present in the 
law school, the students who really have at heart the study 
of law are going to find a place to do that anyway.

Q. How about places for typewriters and study rooms 
with typewriters; has that not become desirable! A. Yes; 
not the furnishing of typewriters, just the space.

Q. How about facilities for the faculty ? A. Office space ?
Q. Office space and study space. A. Of course it is very 

desirable.
Q. Isn’t it desirable that they do have a place where 

they can be quiet; in the same building, I mean? A. I 
don’t know whether my faculty would approve of my say­
ing they ought to be quiet or not. Let’s say where they, of 
course, can have solitude if they need it—yes.

Q. For example, you wouldn’t consider it desirable to 
have (42) a teacher’s office in the library, would you? 
A. Not if I could avoid it.

Q. As to classrooms, what do you consider necessary 
for adequate classroom facilities? A. That, of course, is 
almost entirely in terms of one’s enrollment.



50

Q. Well, within the terms of enrollment—I don’t mean 
necessarily as to size—natural light, if possible—is that 
correct? A. Yes, if possible, but I don’t think I have ever 
seen a classroom that could depend wholly on it.

Q. Then whatever light you have, supplemented by the 
regular lighting? A. Artificial lighting.

Q. What about the setup of the classrooms. Do you con­
sider a formal setup desirable, or just informal, chairs 
sitting around at random? A. No, I consider that bench 
and chair equipment is superior to either ordinary chairs 
or tablet armchairs, if that is the question you are asking.

Q. You do have student lounges now at the University 
of North Carolina; is that correct? A. Not as lounges, not 
at the Law School.

Q. You have a smoking room? (43) A. We have no 
sitting room or lounging room at present, for that purpose.

Q. What space do you have where they can hold bull 
sessions ? A. Such space as they can find. We put in addi­
tional shelves and have some typing space, but absolutely 
no room in the present building which could correctly be 
called a lounge.

Q. I understand in some of the temporary buildings 
you have North Carolina Reports and maybe some other 
books and space for their typewriters and for them to 
study? A. That’s right.

Q. Can they use that in exactly the same way they 
could use a lounge ? A. I suppose they can; they can and 
do use it upon occasion.

Q. So there is space for this getting together and study­
ing in groups, there is that space now available in these 
temporary buildings? A. Yes.

Q. Obviously you considered it important or you 
wouldn’t have put up the temporary buildings for it? A. 
We didn’t put them up; we simply tried to get all the space

Henry P. Brandis, Jr.—for Plaintiffs—Direct



we could when the University got them. We didn’t get all 
we asked for.

Q. How about your faculty offices as of the present 
time; will you describe where they are and how they are 
set up? A. At the present time we have five faculty 
offices, in- (44) eluding the Dean’s, on the main corridor 
off the lobby of the present building; we have one faculty 
office in the corridor of the second floor of the building; 
we have two faculty offices in basement corners; and we 
have two faculty offices in one of our temporary buildings.

Q. That is the way they are now situated. Do you have 
any faculty offices in classrooms? A. No.

Q. Would you consider that a professor’s office located 
in a classroom that is used every day would be desirable? 
A. Certainly not.

Q. Is it not true that some members of your faculty 
hold positions of advising the members of the State Legis­
lature 1 A. Serving on legislative commissions.

Q. Yes. A. Yes.
Q. And that’s been true for several years, has it not! 

A. Yes, sir.
Q. Is there any other governmental service which mem­

bers of the faculty are now performing within the State of 
North Carolina other than being on the faculty? A. Other 
than service on legislative commissions for the State of 
North Carolina, I don’t believe so; I don’t recall any.

Q. How about this Institute of Public Government? 
(45) A. The Institute of Government, Mr. Albert Coates 
is both a member of the Law School faculty and Director 
of the Institute of Government. That was one of the things 
I was trying to ponder. I don’t believe the directorship 
of the Institute of Government can properly be classified 
as State service in the sense you are talking about. It does 
involve studies of governmental problems.

Henry P. Brandis, Jr.—for Plaintiffs—Direct



52

Q. It is officially a part of the University of North Caro­
lina? A. Yes, sir.

Q. Getting to the Institute of Government as a part of 
the University of North Carolina, what effect does that 
have on your student body? Do they go over to it or take 
part in it? A. No; there are no formalized connections 
between the Institute and the Law School.

Q. How about informal? A. We do have a Director of 
the Institute as a member of our faculty, and since he is 
the Director of the Institute he naturally thinks of some of 
his teaching in terms of the Institute’s work, and has from 
time to time asked members of the staff of the Institute of 
Government to come into his classrooms and deal with cer­
tain portions of his teaching in the Law School.

Q. So there is no question that the Institute of Govern­
ment has a wholesome effect on the student body of the Law 
School? (46) A. My own answer to that would be yes, 
but I think I, in fairness, ought to say there has been con­
siderable difference of opinion about that very thing.

Q. Do you have any arrangements whereby students at 
your Law School can attend certain courses at the Univer­
sity while Law School students? A. We don’t have any 
arrangements; we don’t have to make arrangements about 
that. If a student who is basically a law student, for one 
reason or another, wants to take other courses in the Uni­
versity, so far as the University regulations are concerned, 
he can do it if he meets the requirements of the part of the 
University he wants to take those courses in. We will not 
permit a student to take full-time law and also other courses 
in other parts of the University unless he has an especially 
high average.

Q. The other facilities of the University, the gymna­
sium and so forth, are all available to the Law School stu­
dents? A. So far as I know.

Q. Do you have the Order of the Coif there? A. Yes.

Ilenry P. Brandis, Jr.—for Plaintiffs—Direct



Q. It ’s been there a considerable time? A. I don’t know 
liow long it has been there, but it has been a number of 
years.

Q. Students, of course, are eligible if they qualify? A. 
Correct.

(47) Q. How is your Law Review operated, as to in 
what year the students participate in the Law Review? A. 
They begin after their first year. Our usual rule has been 
those who average a “ B ”  on their first year of law are 
given opportunities to be staff members of the Law Review 
the following two years. If they have been on the staff 
their second year, if they drop too far in their average 
they are taken off.

Q. The management of the Law Review, is it under the 
faculty of the University of North Carolina Law School, 
or is it a part of it? A. It is published by the University 
of North Carolina Press, which is a separate corporation 
from the University, but for practical purposes we can say 
it is published by the Law School of the University.

Q. How important do you consider the opportunity of 
a student to work on a law review to be to that student’s 
over-all legal education? A. I think it is a rather im­
portant and significant part of his legal training.

Q. Do you believe an opportunity to get into the Order 
of the Coif is a stimulation to students in law school to 
do better work? A. Frankly, I have some question about 
that. I don’t know whether they know enough about it 
or pay enough attention to it. (48) With some students 
that may be true. Certainly the Coif doesn’t have the 
general reputation of Phi Beta Kappa. You can ask almost 
anybody who knows anything about university work what 
Phi Beta Kappa is. The Coif very few people know, and 
I really don’t know whether it is a great incentive.

Q. As to placement of students who have graduated, 
is it not true, at least in recent years, that in applying for

Henry P. Brandis, Jr.—for Plaintiffs—Direct



54

a job as a lawyer it has become almost the unbreakable rule 
you have to be a law review man to get in the high bracket 
of beginning law jobs'? A. We have to define what we 
mean by the high brackets.

Q. Assuming everything else is equal, isn’t it true that 
a graduate of a recognized law school who is also a member 
of the law review of that school, if it be a well recognized 
law review, stands in better position than one who is not 
a member of the law review? A. If you are talking about 
fairly sizable law offices, particularly in cities—and I think 
this is far more true in cities like New York and Wash­
ington than in cities in North Carolina—they are hiring 
a man cold, no friendship proposition, solely on their 
records, those people usually do specify law review, the 
top such-and-such percent of the class, but I think there 
are many lawyers in this state who have no such insistence 
on that in hiring jjeople, and I can honestly say—and show 
you letters if you like—that I get inquiries now (49) and 
then where the lawyer specifies he doesn’t want somebody 
from the top part of the class. He distrusts them.

Q. Dean, getting back to the student body, as such, as 
I understand it, a student applying for advanced standing 
in the first year at the University of North Carolina Law 
School—and I think most law schools do not admit such 
students in the middle of the first year—is that correct? 
A. That is correct in our case, because we have certain 
courses that run throughout the year, and if we tried to 
admit students with advanced standing in the middle of 
the year we simply couldn’t arrange a program we wanted 
them to have.

Q. Do you have any objection to a student who has 
finished one semester, who is applying as an entering law 
school student, provided his first year was satisfactory, 
first half? A. As a basic proposition, no. I don’t know 
that we have had that problem.

Henry P. Brandis, Jr.—for Plaintiffs—Direct



Q. There is no rule or regulation that makes him 
ineligible for the first year solely because he has had a 
half-year’s work? A. No.

Q. Getting to the student body at the Law School of 
the University of North Carolina, would you say that that 
student body is a pretty good cross-section of the state! 
A. Yes.

Q. That goes as to area, for one thing, does it not? (50) 
A. Yes, sir.

Q. ITow about types and backgrounds of students; do 
you not have a very good cross-section of backgrounds 
from the highest to the lowest, from a monetary stand­
point, financial standpoint, or their training? A. On the 
whole, I think that is true. Of course there are limita­
tions to it.

Q. And don’t you consider that as an essential element 
in a well-rounded law school? A. I think the only way 
that that question can reasonably be answered is this: 
I think it ’s valuable in a law school to have students whose 
backgrounds are varied. I don’t think it ’s essential to 
have a cross-section of backgrounds from this state or 
any other state or part or probably from all of the country. 
The only thing that is essential is varied backgrounds so 
they bring different viewpoints.

Q. Isn’t that valuable to a student attending a school 
of that type? A. Where there is a variety of different 
viewpoints ?

Q. Yes, sir. A. Yes, sir.
Q. Isn’t that recognized by the law-teaching profession 

as a desirable thing? A. I would say yes, but I don’t be­
lieve I am really in position (51) to say that as a matter 
of knowledge.

Mr. McMullan: It seems to us the questions are 
getting a little too general.

The Court: Well, I will let him answer it.

55

Henry P. Brandis, Jr.—for Plaintiffs—Direct



56

Q. (By Mr. Marshall) Dean, how important do you 
consider this opportunity to have the discussions, bull 
sessions, if you please, outside of the classroom, among as 
varied a group as possible? Do you consider that desirable 
as to the formal legal education a student gets? A. No— 
for this reason: I think you will find that, in practice, 
the little groups of students who have consistently studied 
together and do discuss these things together are not 
selected on any such basis as that at all. There is a process 
of self-selection there that simply doesn’t work out the way 
you are suggesting.

Q. Then let’s cut one point out and leave the other 
point: that you consider the opportunity to participate
in, if agreeable with the group, of small groups discussing 
these problems outside of the classroom, to be important 
to the classroom instruction? A. I f we are still talking 
about differences in backgrounds and viewpoints, I don’t 
consider that to be particularly significant as far as non- 
classroom discussions are concerned.

Q. Then your original statement is limited to the class­
room (52) instruction, as such, and, if I understand cor­
rectly, in the case-book method of teaching, discussion and 
viewpoints of the students from these varied backgrounds, 
giving varied opinions, is essential to a good legal educa­
tion? I am not asking this as to qualitative— A. Not 
essential.

Q. Is it valuable? A. Helpful to the teacher in the 
process of instruction.

Q. Is it valuable? A. It is valuable, helpful to a 
teacher, but a teacher who finds himself faced in a par­
ticular class, as all of us do at times, with certain view­
points that ought to be expressed and are not in that class, 
should, if he is worth his salt, be able to supply that view­
point himself.

Q. The important point is that you, as a teacher, would

Henry P. Brandis, Jr.—for Plaintiffs—Direct



57

Henry P. Brandis, Jr.—for Plaintiffs—Direct

personally prefer to have those viewpoints come from the 
students themselves! A. Yes; it makes my job easier.

Q. In the case-book type of teaching, isn’t it valuable 
to that type of teaching, as contrasted to the lecture 
method! A. It is.

Q. The case-book type of teaching, with a few students, 
all from the exact same type of background, would not be 
the type of instruction you are giving at the University 
of North Carolina (53) Law School, would it! A. Yes, 
it still would be. The case method of teaching is still the 
method we are using.

Q. Would it be as good! A. It depends wholly on the 
teacher, in the last analysis. I have tried to explain that, 
I thought.

Q. In order to get an equal education with the type of 
teaching that is done at the University of North Carolina 
Law School as of this year, with a small number of 
students, less than ten, all from the same type background, 
would it not be necessary for that professor to be an 
extraordinary one! A. Now, let’s be sure. You are ask­
ing me now to answer this question solely on the basis of 
two factors: first, a small number of students; second, that 
they have exactly the same type of background!

Q. That’s right, dead level. A. Of course that would 
make the teacher’s job harder.

Q. What I am asking is, in order for the student in 
that small school to get an education equal to that given 
to the students of the University of North Carolina Law 
School, wouldn’t that teacher have to be an exceptional 
teacher to give the equal to what you are giving at the 
University of North Carolina! A. I don’t know. We are 
in a comparative range here that you can’t answer—

(54) Q. Let’s try this: In order to meet the situation 
you have just mentioned, where you wanted one viewpoint 
but didn’t get it because it wras not in your classroom, so



58

you. had to bring it out, didn’t you bring that out out of 
your teaching experience ? A. Not necessarily, Counsellor, 
because it seems to me, in trying to think back on that, I 
realized the necessity of doing that the first year I taught, 
when I didn’t have any experience whatever.

Q. Don’t you from year to year get' different types of 
classes? A. We do.

Q. And you can only cope with those different types of 
classes on the ground of your experience? A. No. Some­
way you cope with them to start with; you have to. Maybe 
you do it more readily as time goes on, and you have fewer 
surprises, but you have to do it from the outset,

Q. Don’t you do it a little better as you go along? A. 
We all hope so—but deponent sayeth not.

Q. And experience in meeting these situations can only 
come from teaching in a law school; you can’t get that ex­
perience any place else, can you? A. To a very consider­
able extent one could get it teaching non-legal subjects. 
There is a certain amount of common technique in teaching, 
whether the case method or something else. To a certain 
extent our viewpoints come not from teaching but (55) 
from experience with other things. I don’t know, if I sat in 
a classroom for twenty years, that I would see a viewpoint 
that was consistently lacking among my students, unless I 
ran across it outside.

Q. The odds are that, the longer you teach, the better 
you are able to get over that situation? A. Probably so.

The Court: We will take a few minutes recess.
(Thereupon, a brief recess was taken.)

Q. (By Mr. Marshall) Along the line we were talking 
about a minute ago, about discussion among students inside 
the classroom, under the case-book method, did you include 
in your opinion that it was valuable to have this inter­

Henry P. Brandis, Jr.—for Plaintiffs—Direct



Ilenry P. Brandis, Jr.—for Plaintiffs—Direct

change, the natural competition among students from a 
mental standpoint and in their questions and answers in 
class? A. I think we may be in danger of getting into 
two different things, Counsellor. Competition among stu­
dents implies one thing; that is, you can have competition 
among- students, and do have among students, with the 
same viewpoints. Of course any competition among stu­
dents is valuable for classroom pux-poses,

Q. It is valuable not as to the exact size, but the larger 
law school class has more competition! A. My experience 
has been this: that you do in a larger (56) class get in­
creased competition at the very top level of the class, but 
that in the medium and lower ranges of the class it is far 
from beneficial and probably is to the detriment of those 
people, because there is a very definite tendency for them 
simply never to participate in classroom discussion unless 
they are singled out by the instructor and brought into it, 
dragged into it almost at times.

Q. But you do consider valuable to the student the op­
portunity to qualify in that type class for this competitive 
student? A. To the individual student, I think that is 
true; to the extent he does participate in the give and take 
of a classroom it has value to him. But may I make one 
more remark? This may be wholly a function of my own 
individual failings—I don’t know—but as my classes have 
gotten bigger since the war I have found it increasingly 
difficult, and at times impossible, to get the sort of discus­
sion by those classes I would like to have. The classes are 
simply too big, and it tends to degenerate into a question- 
and-answer proposition instead give and take among the 
students.

Q. Dean, as I understand, a class that is too large, for 
your purposes, is not as good as a class that is not that 
large? A. That is true.



60

Q. Do you also have the opinion that a class that is too 
(57) small is bad? A. I do.

Q. What do you consider an ideal size ? A. To my way 
of thinking, an ideal size for a law class is about between 
twenty and thirty.

Q. Would you go below ten on that? A. Not on the 
ideal.

Q. As you go below twenty, in value to the students, do 
you not begin to lose value to the students? A. I think you 
begin to lose some values. But, may I volunteer, in com­
parative terms, I would rather teach a class of ten, and 
think it would be of more value to the students, than to 
teach a class of a hundred and ten.

Q. You would rather have the size somewhere over 
twenty? A. Twenty to thirty. In other words, you asked 
me for the ideal, and that would be my opinion of the ideal. 
We vary from that in either direction, obviously.

Q. Dean, you offer, in addition to the LL.B. degree, the 
J.D. degree; is that correct? A. It is correct.

Q. On what basis is that offered? A. The J.D.?
Q. Yes. A. The requirements for the J.D. are the same 

as the re- (58) quirements for the LL.B, plus three 
things: first, that the student have a college degree, A.B. or 
B.S, or the equivalent, before entering law school; secondly, 
that he average in law school scholastically a ! ‘ B ”  or better; 
and, third, that he have published in the Law Review ap­
proximately eight pages of material.

Q. Is it not true that the degree of J.D., as contrasted 
with LL.B., is of increased value to the student—to the 
graduate, rather? A. So far as what their education 
amounts to, Counsellor, I think the answer to that is “ No.”  
There are many good law schools which do not give the sort 
of J.D. degree we give. As you well know, Counsellor, 
the degree of J.S.D., or S.J.D., is usually the graduate de­
gree for work beyond the three normal years of law. Ours

Henry P. Brandis, Jr.—for Plaintiffs—Direct



is not a graduate degree. What it actually amounts to is 
an indication of good work in law school, plus this extra 
year beyond our minimum requirements of pre-law educa­
tion before coming to law school. It is my understanding— 
I wasn’t there at the time, and so may be wrong, but I have 
understood that the reason the J.D. degree was put into 
our setup—well, there were two: one, for the very purpose 
of inducing students to take four years rather than three 
years of pre-law school work; and the second was some 
inducement, at the time when only two years of law study 
were required to (59) take the State Bar examination, 
to get students to finish and take a third year of law. And 
I, frankly, have had some qualms myself as to whether we 
should continue the J.D. degree, whether it is really a 
justifiable degree; to give a doctorate, in other words, for 
the ordinary three years of law.

Q. But a person with the J.D. degree, he has more than 
a man with the LL.B.? A. Oh, I think the student prob­
ably would rather have the J.D. degree than an LL.B. de­
gree. I seriously doubt that it will have any great effect, 
just the possession of that particular degree will have any 
great effect on his career. What went into the degree, the 
securing of the degree, in terms of scholastic effort, is far 
more significant than those two letters.

The Court: Have you conferred that degree on 
any in recent years?

The Witness: Yes. Last year I think we prob­
ably had the largest number we have ever had; I think 
we had thirteen J.D. degrees in a total class of 
around eighty.

The Court: You had how many the year before?
The Witness: If I had to guess I would say nine, 

but that may not be right.
The Court: Your enrollment isn’t normal, is it, 

now, and hasn’t been since the war?

Henry P. Brandis, Jr. — for Plaintiffs—Direct



62

(60) The Witness: Our enrollment since the 
war has been something better than double what it 
was before the war.

The Court: What was your enrollment just be­
fore the war?

The Witness: About a hundred and twenty-five, 
as I recall.

The Court: Are the bulk of your students veter­
ans?

The Witness: Yes, sir; this last year the law 
school was eighty-four percent veterans. It will de­
cline some this coming year.

The Court: I don’t know that it has any bearing- 
on this case, but just for general information, what 
is your enrollment now for this year?

The Witness: As of last fall, at the opening of 
school, it was 280. There is no possible way for me 
to give any exact prediction, particularly in view of 
the military situation, what it will be at the opening 
of school this fall. I think it will be in ten of two 
hundred and fifty.

The Court: Was your enrollment last year more 
or less than the preceding year?

The Witness: Slightly less. The preceding year 
was 288.

Q. (By Mr. Marshall) You also have Summer School, 
in addition to your regular session? A. That’s correct,

Q. You give degrees to students for courses during the 
(61) summer session? A. We do.

Q. Is it also true that the summer session is to help 
students who want to take the March Bar examination? 
A. That wasn’t the purpose of having Summer School. 
We always in recent years have had a Summer School; our 
Summer School is not a post-war development. It has been

Henry P. Brandis, Jr.—for Plaintiffs—Direct



Henry P. Brandis, Jr.—for Plaintiffs—Direct

there for those who wish to take the March Bar examina­
tion to take advantage of, but that is no longer a practical 
inducement from the standpoint of entering students, un­
less the Board of Law Examiners changes its purpose, 
because they have announced that the March, 1950, exami­
nation will be the last one given in March. So, from the 
standpoint of speeding up the time of taking the Bar, it 
will not be possible any more.

Q. The Placement Bureau, will you explain how that 
operates! A. There is no Placement Bureau. The Law 
School Association, which is comprised of all the students 
in the Law School, has a placement committee and the Law 
School Association has made available to that committee a 
small amount of its funds—I can’t give you the exact figure, 
but I don’t believe it ’s appropxiated to that committee 
more than, say, seventy-five dollars a year for the last 
several years, arid what it has been able to do is simply to 
write letters to lawyers, calling their attention (62) to 
the fact that there will be people graduating from the Uni­
versity of North Carolina Law School who would very 
much like to have good jobs and asking the recipients of 
the letters to indicate whether they could use some of the 
students or whether they know of any openings that the 
students might get. That is outside of my own efforts as 
Dean; and I suppose every dean of a law school does what 
he can to place his graduates.

Q. Does the University have a eommitte on placement? 
A. No, no committee on placement. They have a Placement 
Service Office, run by Mr. Galloway and it is possible for a 
law student to file the personal information with that, just 
as it is possible for any other student of the University to 
do so. My impression is that practically no law student has 
received a job by virtue of the information he filed with 
the General Placement Service of the University.

Q. Have you gotten any replies to the letters written by



64

your Law School? A. By the Law School Association 
committee? Yes, there were in the neighborhood of a 
hundred replies to those letters last year. I think the total 
productivity, in terms of fairly firm job openings, was not 
more than six. It was rather disappointing, I am sorry 
to say.

Q. There are two other things, Dean: The question I 
was asking about the writings of the members of the fac­
ulty, and you said you didn’t have it but could get it, could 
you prepare such (63) a list for a few years? A. In 
how much detail would you want it? I think I have a 
memorandum with me that lists in general the subjects 
they have written on and the publications in which they 
have appeared, but it doesn’t break it down article by 
article.

Q. I think that is what we would like to have, sir, if we 
may. A. Do you want me to read this ?

Q. I don’t know, sir. If it can be left—we are trying to 
shorten the time here. A. It is a little over a page.

The Court: Do you have just one copy, or are 
there other copies, that I may have one?

The Witness: I only have the one copy.
Mr. McMullan: We have several copies of it.
The Court: Just file one with the reporter, and 

that will dispense with having him read it now.
(The memorandum referred to was received in 

evidence as Plaintiffs’ Exhibit 3.)
The Court: I suppose what you want to put in 

the record there is all the data under the subhead 
(e)?

Mr. Marshall: That is right, sir.
The Court: Let the reporter mark that Exhibit 3 

for the purpose of showing the contents in subsec­
tion (e).

Henry P. Brandis, Jr.—for Plaintiffs—Direct



(64) Q. (By Mr. Marshall) Dean, if I understand cor­
rectly, that is not complete; there have been writings other 
than those? A. No, it is a summary. I think, so far as 
the information I have been able to gather was concerned, 
this is complete. It does not break down by titles all 
articles and that sort of thing. There may be one or two 
omissions. For instance, in my own case, it just occurs 
to me one of the articles I published in the North Carolina 
Law Review was also published in the Iowa Law Review; 
but I think there are very fevr omissions even of that sort. 
I think this is substantially correct as a summary.

Mr. Marshall: The University of North Carolina 
Record, and in that the Catalogue of the School of 
Law, the Catalogue of the University of North 
Carolina Law School, designated a part of the Uni­
versity of North Carolina Record, you have no ob­
jections to that, do you?

The Court: Is there any particular page you
want to call to the Court’s attention?

Mr. Marshall: We would like to put the entire 
catalogue in, with one question of the Dean.

(The catalogue referred to was received in evi­
dence as Plaintiffs’ Exhibit 4.)

Q. (By Mr. Marshall) The statement as to each faculty 
member’s qualifications and background, is that correct? 
A. To the best of my knowledge, yes, sir.

(65) Q. And a fair statement of their background? A. 
Yes, sir.

Q. I understand that of the courses of instruction listed 
there are thirty-nine, but one has been canceled, so there 
are thirty-eight? A. That is correct. The one canceled 
is the Wage and Hour Law Seminar.

Henry P. Brandis, Jr.—for Plaintiffs—Direct



6 6

Q. Other than that all courses listed are being offered 
for this year? A. That is correct.

Mr. Marshall: Your witness.

Cross examination by Mr. McMullan:
Q. Dean Brandis, speaking of the courses offered by 

the Law School, to what extent can they be combinations 
of courses offered under different headings, covering the 
same general subject; in other words, the fact that you 
have divided it into thirty-eight courses, is the coverage 
any greater than if the courses were fewer? A. Not neces­
sarily. Terminology in labeling law school courses is not 
wholly standard. There are some things which one ex­
pects to find almost everywhere, like courses in Torts and 
Contracts, but in a field, for instance, of trying to teach 
the various methods of organizing business, some law 
schools (66) may have courses in Corporations and 
courses in Partnership and certain other types of business 
organizations. In our case we happen to give a course in 
Business Associations. Law teachers, unfortunately, are 
never quite satisfied with their curricula and constantly 
tend to make experiments, taking a little out of Course A 
and putting it in Course B, taking Course B and splitting 
it; and then in a few years doing just the reverse.

Q. That is more or less a matter of selection by the 
law school that makes the separation in offering the 
courses? A. That’s correct. It is conditioned by the par­
ticular type of faculty one has and availability.

Q. You were asked about the Summer School, Mr. 
Brandis. Did any of the applicants in this case file appli­
cation for admission to the Summer School? A. Specifically 
the Summer School, I believe not.

Q. Now about the Order of the Coif, is that an institu­
tional affair or is that an organization that is national in

Henry P. Brandis, Jr.—for Plaintiffs—Cross



67

character and just happens to be at the University? A. 
It is a national organization.

Q. Do you happen to know whether or not the Order 
of the Coif is in Harvard? A. I think the last list I saw 
did not include Harvard.

Q. Is that a good law school, Mr. Brandis? A. I have 
understood so.

(67) Q. Do you happen to know how many law schools 
the Order of the Coif is in? A. Thirty-odd, I think; I 
don’t remember the exact number.

Q. How many law schools are accredited by the Amer­
ican Bar Association in the United States? A. Well over 
a hundred. I don’t remember that exactly.

Q. Do you happen to be a member of the Order of the 
Coif yourself? A. I don’t think I am.

Q. Mr. Brandis, about the student organizations, I think 
you told Mr. Marshall they were voluntary organizations, 
not a part of the University operation? A. You are speak­
ing of the Law School Association?

Q. Yes. A. That is correct. There is a Law School 
Association fee which is charged, but the money is wholly 
under the jurisdiction of the student association; it. is not 
controlled by the Law School.

Q. Do you know of any reason why any law school 
couldn’t have an association of a similar kind if it wanted 
to have it? A. It is my impression that most law schools 
do. Some of them call them student bar associations and 
other things. I believe most schools have it.

Q. You were asked to talk about the J.D. degree. As 
I understand what you told counsel, it is more or less of 
an (68) honorary attachment to an ordinary degree. Is 
that correct? A. That’s correct.

Q. Something like Cum Laude, or some other name for 
it? A. Yes. Occasionally we have given an LL.B. with 
Honors to a man who was exceptional but didn’t have

Henry P. Brandis, J r—for Plaintiffs—Cross



6 8

enough pre-law-school work to be eligible for the J.D. de­
gree.

Q. What is the value of having the Order of the Coif in 
a law school? Does a student get to be a member of the 
Order of the Coif while he is in law school? A. No. The 
condition of membership is that he graduate in the top 
ten percent of his class, so he doesn’t know until he grad­
uates whether he will be a member or not.

Q. It isn’t particularly helpful to him while he is there? 
A. No; he doesn’t become a member while he is there.

Q. Do you accept contributions to the North Carolina 
Law Review from students at the North Carolina College? 
A. We have in the past, yes.

Q. How contributions have you had? A. So far as I 
recall, since the war there have been none offered.

Q. Prior to that? A. Two or three; I don’t remember 
just how many.

Q. You were asked if membership in the Law Review 
would help a student. I ask you, then, if what you were 
meaning to say is that if a student was a good enough stu­
dent to be in (69) the upper ten percent that is what 
helps him rather than being a member of the Law Review? 
A. No, not literally. The preparation of material for the 
Law Review involves a type of legal research which we 
think is valuable in the training of a student. It is the 
preparation that has the value, and it is quite clear that a 
student can do that research and write the sort of a thing 
which is usually published in a law review regardless of 
any question of publication. It is the training involved in 
the research that we think carries the value.

Q. There are people who have a different point of view 
about that, aren’t there; who think you are monopolizing 
the time of a student which he might be better spending- 
in covering his course? A. I think a lot of people have 
that view.

Henry P. Brandis, Jr.—■for Plaintiffs—Cross



69

Q. It does take a lot of time, doesn’t it? A. It takes 
rather a good deal of time to write a Law Review comment.

Q. And sometimes some of them fail to pass the Bar? 
A. I think that has happened fairly rarely.

Q. It has happened, though? A. Yes, it has happened.
Q. Mr. Brandis, what is the setup of law schools in 

North Carolina—will you call them, please, sir, the regu­
larly constituted, organized law schools? (70) A. Well, 
of course, the two we have in question here; the Duke Uni­
versity Law School and the Wake Forest Law School.

Q. How long has the Law School at Wake Forest been 
in operation? A. I don’t know, but at least in my time.

Q. Do you remember about the size of the school the 
first time you knew of it? A. Not exactly; I think it was 
somewhere in the neighborhood of seventy-five or eighty, 
but I would hate to be pinned down to that.

Ql. Have you ever known of any particular disadvantage 
to a man having been a student in that law school on ac­
count of its size? A. No.

Q. Did you know Dean Mordecai when he was operating 
a law school at Trinity College, as it used to be known? 
A. I am sorry to say I never met Dean Mordecai, but I 
suppose every lawyer in North Carolina has heard of him.

Q. Do you happen to know what he says about the size 
of classes he was willing to teach? A. No, I do not,

Q. Had you heard he refused to teach a class of more 
than nineteen? A. I have never heard that.

(71) Q, What was the reputation of Dean Mordecai’s 
law school? A. Excellent.

Q. What was the reputation of Wake Forrest Law 
School? A. Excellent.

Q. How many law students are there at the present 
time enrolled in Wake Forest? A. I think we ought to ask 
that question of some gentleman present who knows it

Henry P. Brandis, Jr.—for Plaintiffs—Gross



70

more intimately than I do. My recollection is, of the last 
figure I saw, a hundred and eighty-odd.

Q. How many are enrolled in the law school at Duke? 
A. As of last fall, 277. I happen to remember that figure.

Q. Dean Brandis, you were examined at some length by 
counsel as to the value of the experience of a man who is 
teaching in a law school.

I ask you if the value of a teacher can be put into a 
formula and say this man has had so many years and is a 
better teacher than somebody who had had some lesser 
time. A. Obviously not.

Q. After all, the value of a law-school teacher comes 
right down to the value of the man who is doing the teach­
ing? A. Correct.

Q. A man might have had thirty years’ experience in 
law-school teaching and still be unable to impart what 
knowledge he has to the students? (72) A. That is an 
extreme case, but is jjossible.

Q. Don’t you happen to know there are some teachers 
of long experience who don’t have that happy faculty? A. 
Unfortunately, I sat under some.

Q. After all, in evaluating a particular law school, you 
want to know what kind of man is dean of the law school? 
A. I would hope so.

Q. You would want to know, in addition to the length of 
time he’s had and the degrees he holds, whether he is an 
efficient man of fine character and capable of organizing 
and carrying on a law school? A. Yes, sir.

Q. You wouldn’t say that mere length of time would 
be the determining factor? A. Since I have been Dean 
just a little over a year, I would rather say “ No”  to that.

Q. Do you happen to know how long Dean Turner has 
been Dean of the Law School? A. As I recall, about seven 
years, including his acting deanship.

Henry P. Brandis, Jr.—for Plaintiffs—Cross



71

Q. Do you know what degrees he holds? A. I don’t, 
know what degrees he holds,

Q. You are personally acquainted with him? A. Yes.
(73) Q. What is your impression of him as a man and 

as a law-school teacher ? A. I don’t think there’s any ques­
tion in the world but that he’s first-rate in every respect.

Q. You were asked to assume the ideal of a group of 
men on an absolute level in a class that somebody might 
sometime teach. I ask you, as a matter of fact, if you ever 
find such an ideal situation. A. You mean have I ever 
taught a class with that many people in it with an absolute 
dead-level viewpoint? No.

Q. So you were being asked about something that didn’t 
actually exist, weren’t you? A. There are bound to be 
some differences in viewpoints.

Q. Differences in backgrounds, training and their own 
personal qualifications? A. That certainly is the normal 
expectation.

Q. Just as varied as humanity? A. It certainly can be.
Q. Now we get down to the practical question of dis­

cussion groups there at the University of North Carolina, 
and I will ask you if it isn’t a fact that discussion g'roups 
are more or less of the boys who room in the same building 
or have rooms close together? A. Proximity, I believe, is 
part of the picture, but it (74) is more a process of self­
selection through individual compatibility when you come 
to these small study groups.

Q. And that is a matter of individual choice? A. Yes, 
sir.

Q. Whom you are going to discuss with is your own 
option and your own selection? A. Eight.

Q. As a matter of fact, Mr. Brandis, talking about bull 
sessions, there could be too many bull sessions, couldn’t 
there, instead of individual application to the work in hand? 
A. There sometimes are.

Henry P. Brandis, Jr.—for Plaintiffs—Cross



72

Q. The ideal class, you say, would be from twenty to 
thirty? A. That is my own opinion. Other law teachers 
would probably differ on that.

Q. How big classes have you been having at the Univer­
sity of North Carolina? A. Most of our first-year classes 
since the war have run somewhere from 106 to 115, in that 
neighborhood.

Q. How often would the first-year student in one of 
those big classes be called upon to recite or answer ques­
tions? A. I can’t go beyond my own experience there, be­
cause I have never checked with the rest of the faculty. 
I t ’s been my own experience that it ’s been rare that I have 
called on a man more than twice during the course.

(75) Q. Do you always know the names of all of them? 
A. I have the roll in front of me, but fitting the name with 
the face is another problem.

Q. I ask you if there isn’t a great advantage in a pro­
fessor having a personal contact and association with the 
student? A. I think there is.

Q. If you could know their individual peculiarities, 
would you help them more? A. You certainly should be 
able to do so.

Q. Wouldn’t you have a far better chance of doing that 
with a class of ten than of a hundred and fifteen or twenty? 
A. Yes.

Q. Assuming that it is a professor using the same 
amount of capacity in dealing with a class, would he not 
have, in a class of that kind, an opportunity to get a student 
up so he could graduate from the law school? A. I think 
it would help him.

Q. Wouldn’t it help the student to pass the State Bar? 
A. I would hope so—-if we ever help them to do that.

Q. Mr. Brandis, you told us about the present condition 
there in the Law School with reference to space, since you 
have had the enrollment of 280 students. What are you

Henry P. Brandis, Jr.—for Plaintiffs—Cross



Henry P. Brandis, Jr.—for Plaintiffs—Redirect

doing witli the law books you have there now; where are 
they stored, as to availability and so forth? (76) A. Not 
more than about a third of our total holdings are available 
now. We have had for some years in the general neighbor­
hood of twenty thousand books stored in the main Library 
because we didn’t have space for them in the building. In 
connection with the addition to the Law School, we have 
had to move approximately twenty-seven thousand books 
out of the stacks and store them and they are not available 
until we get back in the new building.

Q. How long have they been housed in that temporary 
way? A. So far as the books stored in the main Library 
are concerned, that’s been true for five or six years as a 
minimum. The other condition began the first of the sum­
mer.

Q. What type of buildings are they, those temporary 
buildings? A. You are not asking about where the books 
are stored now?

Q. No; I am asking about the character of the building. 
A. The temporary buildings we are using others for storage 
of books, they are government surplus, frame wooden 
buildings.

Q. You wouldn’t call that an appropriate place for use 
of a law school, would you? A. No, sir, certainly not.

Mr. McMullan: All right, thank you.

(77) Redirect examination by Mr. Marshall:

Q. Do I understand you correctly that you wouldn’t 
consider an old wooden building adequate for a law 
school? A. Certainly not for permanent quarters, no.

Q. Do you know of any recognized law school with 
twenty-eight students in it, a total of twenty-eight? A. 
What do you mean by “ recognized” ?

Q. Well, for example, recognized by the Association of



74

Henry P. Brandis, Jr.—for Plaintiffs—Redirect

American Law Schools. A. I would have to check the 
figures, hut my impression is that there is currently no 
member of the Association which does not have a student 
body in excess of that figure.

The Court: Is there any limitation placed by
the Association as to the number?

The Witness: My recollection is that there is no 
minimum number of students required as part of 
the standards of the Association, but I would have 
to check that.

The Court: Has the Law School of the Uni­
versity of North Carolina been a member for the 
last fifteen or twenty years?

The Witness: It has been a member since 1920.
The Court: It didn’t lose its membership dur­

ing the war?
The Witness: No.
The Court: What was its enrollment during the 

war?
(78) The Witness: It went down to thirteen at 

one time.
The Court: But it didn’t lose its right as a

member?
The Witness: No.
The Court: Do you know about the Wake Forest 

Law School?
The Witness: It is a member, has been for some 

time.
The Court: Do you know what its enrollment 

was during the war? What happened to it?
The Witness: It was consolidated with Duke

University Law School during the war. What the 
enrollment was I don’t know.

The Court: Do you know what the enrollment 
of Duke University Law School was during the war?



75

The Witness: No. Wake Forest and Duke were 
merged during* the war.

The Court: The University was offered oppor­
tunity to go over and join with them, wasn’t it!

The Witness: Yes.

Q. (By Mr. Marshall) You testified that law-school 
teachers who have been teaching a long number of years 
wouldn’t necessarily be good teachers? A. Yes, sir.

Q. Do you have any such teachers at the University of 
North Carolina Law School?

Mr. McMullan: Object to that.
The Court: I think that’s competent.

(79) A. No, we do not have such.
Q. You also testified that Dean Turner, of the School 

of Law of the North Carolina College at Durham, was 
qualified in all respects? A. That I thought he was first- 
rate in all respects.

Q. Are you passing upon his qualifications as Dean of 
that Law School? A. In so far as I have had an oppor­
tunity to know him as a man, yes, that is exactly what I 
am doing.

Q. Did I understand you correctly that you had never 
been to that school? A. Not in its present quarters. I 
have been to the Law School in years past.

Q. How many years past? A. I have been there at 
one time or another, I suppose, off and on since about 1941, 
along in there.

Q. Do you know how Dean Turner operates that Law 
School, of your own knowledge? A. No, not in detail.

Q. Isn’t it true that you can’t pass upon his qualifica­
tions as Dean of that Law School? A. Let’s be very clear 
on this, Counsellor. Are you asking me about his perform­
ance or his qualification? I think, knowing Turner as a

Henry P. Brandis, Jr.—for Plaintiffs—Redirect



76

man and witli some personal experience of the (80) 
capacity and qualities required to be a good dean of a law 
school, however erroneous it may be, that I can pass on 
his qualifications. I can’t pass on his performance be­
cause I have had no opportunity of—

Q. That is what I mean. In regard to the size of 
classes at the Law School of the University of North 
Carolina, didn’t you split some of those large classes last 
year? A. Two of the classes were sectionalized, the course 
in Contracts and the course in Real Property. There are 
a total of eight first-year classes, so that only one-fourth 
of the courses were sectionalized.

Mr. Marshall: That’s all.

Recross examination by Mr. McMullan:
Q. About the intervenor, Kenneth Lee, did he ever sub­

mit to your school any transcript showing his qualifica­
tions and grades and so forth? A. To the best of my 
recollection, he did not, and I have not located it in the 
records.

Q. You have no information as to his academic stand­
ing and background? A. No, except that his application 
showed he had received an A.B. degree from A. & T. 
College.

(81) Q. Before any student is admitted to the Law 
School, is that a requisite, that he do that? A. Yes, sir, 
because our requirement is not only a minimum of three 
years’ college work, hut a minimum “ C”  average. We 
appraise those transcripts before we make any admissions.

Q. Did you so write him on June 19, 1950 (exhibiting 
paper to witness) ? A. This letter was not written by me, 
Mr. McMullan. It was written by my secretary, as indi­
cated by the stenographic initials, but I recognize it as a 
form letter the Dean’s office sends out in anwer to inquiries

Henry P. Brandis, Jr—for Plaintiffs—Recross



about admission to the Law School. It has nothing to do 
with an application; it is not an answer to receipt of an 
application. It is only an answer to an inquiry.

Mr. McMullan: We would like to have that
marked as an exhibit.

(The document referred to was marked as De­
fendants’ Exhibit 1 for Identification.)

Redirect examination by Mr. Marshall:
Q. When a white student applies and does not send his 

transcript, what is your practice? A. We simply don’t 
pass on it ; we regard it as an incomplete application where 
we don’t receive the transcript. Very rarely, (82) where 
a student has come in the office personally at a very late 
time, I have taken his word for what his record is and 
taken his application on that basis. I have in my file now 
some applications as far back as last November on which 
we have not received transcripts.

Q. You don’t write to the applicant and tell him he is 
short of the transcript and should send it? A. We don’t 
have any ironclad policy about that. We have in some 
cases where we thought it might have been sent in and 
misplaced.

Q. If a Negro applies, his application is just returned; 
no question about what else he should send? A. No, that 
isn’t wholly true. We have examined the transcripts of 
Negro applicants who have sent in transcripts and, as 
some of the letters you have had opportunity to see indi­
cate, we have pointed out in some of the letters—

The Court: Throughout the whole time you have 
been a professor at the Law School of the University 
no Negro has been admitted as a student there?

The Witness: No, sir.

77

Henry P. Brandis, Jr.—for Plaintiffs— Re-redirect



78

Henry P. Brandis, J r—for Plaintiffs—Re-redirect 
—Re-recross

Mr. McMullan: Your Honor, he is saying that 
he would have to be otherwise qualified.

The Court: Oh, of course.
We will take a recess until two o ’clock.
(Thereupon, at 12:50 p. m. a recess was taken 

until 2:00 p. m. of the same day.)

(8 3 ) A fternoon  S ession

Mr. Carter: Your Honor, again invoking Rule 
43(b), we would like to call Miss Elliott as an 
adverse witness.

Mr. McMullan: If your Honor please, we wanted 
to ask one more question of Dean Brandis.

The Court: All right, sir.

HENRY P. BRANDIS, JR., resumed the stand and 
testified further as follows:

Redirect examination by Mr. McMullan (continued):
Q. Dean Brandis, I failed to ask you what the annual 

appropriation made by the State is to the Law School at 
Chapel Hill. A. The part of the University budget which 
is allocable to the Law School as of the jiast fiscal year, 
$117,771.

Recross examination by Mr. Marshall:

Q. Dean Brandis, could you give us without trouble the 
salaries of members of your faculty? A. I can’t give you 
the exact list; I can give you the range. The lowest salary 
is $4,500; the highest for professorial duties is $8,500.



79

Q. Tlie lowest is for the assistant professor; is that 
right? (84) A. For assistant professor.

Q. And what is the range of salaries for professors? 
A. The lowest for a full professor is, I believe, $6,740.

Q. And that ranges? A. Ranges from $6,740 to $8,500 
for professorial duties.

Q. And, as I understand, for the Dean it is $1,800 in 
addition to that. A. That is not $1,800 in addition to 
$8,500. The minimum in professorial duties is $6,740.

Redirect examination by Mr. McMullan:
Q. Did you figure out what that was per student? A. 

The per capita cost per student last year was in the general 
neighborhood of $416. That, incidentally, included the cost 
of operating Summer School and some emergency money 
which was made available to us last year. If you elimi­
nated those two items, the per capita cost would be about 
$362 per student.

Q. Do you know whether or not the basic salaries of 
your staff at the University are the same as they are at 
the North Carolina College at Durham? A. No, I have no 
personal knowledge as to the salaries at Durham.

Mr. McMullan: All right, sir.
(Witness excused.)

(85) LUCILLE ELLIOTT, a witness called by the 
plaintiffs, being duly sworn, testified as follows:

Direct examination by Mr. Pearson:
Q. Please state your name and residence. A. Lucille 

Elliott, Chapel Hill.
Q. What is your present occupation? A. Law Librarian 

at the University.

Henry P. Brandis, Jr.—for Plaintiffs— Re-re-redirect
Lucille Elliott—for Plaintiffs—Direct



80

Q. Miss Elliott, how long have you been Librarian at 
the School of Law at the University of North Carolina! 
A. Ever since September, 1923.

Q. How long have you been connected in any way with 
the Library there! A. That is the length of time.

Q. Have you at any time been connected in any way 
with any law library other than the University of North 
Carolina Law Library! A. Well, I was consultant at the 
North Carolina. College for six years, from 1939 to 1945.

Q. From 1939 to 1945 as consultant at the North Caro­
lina College at Durham! A. That’s right. And I have 
held—you mean in an official capacity!

Q. Yes, ma’am. (86) A. Well, I reorganized the 
Charlotte Bar Library, and I have been asked to help with 
a good many libraries of the South.

Q. Will you please state what are your academic qualifi­
cations! A. Well, I have a degree called Bachelor of 
Pedagogy. I have studied law and I have studied library 
science, hut I do not have degrees.

Q. What professional associations or societies, if any, 
are you a member of in connection with your work at the 
University! A. I belong to the American Association of 
Law Libraries and to the Carolina Law Libraries.

Q. Do you have any full-time or part-time assistance in 
the Library during the regular and summer sessions! A. 
I have one full-time assistant and five to eight part-time 
assistants. Bight now I have five—right now I have three, 
as a matter of fact.

Q. How many part-time assistants do you have during 
the regular session! A. Eight.

Q. Are your part-time assistants students or are they 
trained employees! A. All but two are students. Two of 
them were G.I. brides who are helping their husbands 
through school, and they had two hours of work each, one

Lucille Elliott—for Plaintiffs—Direct



81

doing general work, recordation; the other one was an ex­
pert typist.

(87) Q. Will you give us the qualifications of your other 
assistants? A. 1 had one assistant who was taking law 
who had had experience in library science and experience 
in two other law libraries. She was not employed like my 
whole-time assistant. She just applied for work to help 
her through the Law School.

Q. Do you have any assistants during the Summer 
School session? A. Tes.

Q. How many do you have? A. Trained?
Q. Trained and untrained. I imagine there would be an 

overlapping. A. Yes, that’s right. My whole-time assistant 
helps me all summer except for one month’s vacation, and 
the part-time assistant who is taking law helps me all 
summer; and then I have had four other untrained. I 
mean by that untrained as far as library work is concerned.

Q. But, those four untrained library workers are on 
your payroll? A. They are on what we call the wages roll. 
They get paid hourly rates.

Q. Do you have a secretary? A. I share a secretary 
with ten other members of the faculty. (88) She helps 
me—it varies—twenty minutes to a half-hour to two or 
three hours a day if I have to have her, if I am in a jam.

Q. I believe you told us just now that one of your as­
sistants had a degree? A. A  library science degree, yes. 
You mean student assistants?

Q. No, ma’am. A. Yes, my whole-time assistant has a 
library science degree.

Q. What is the average time spent in the Library by 
the full-time workers? A. Seven hours.

Q. Now what is the average time of the part-time as­
sistants in the Library? A. Two to three hours. Those 
that help at the desk, custodians at the desk, I think they 
average around three hours; the others average two.

Lucille Elliott—for Plaintiffs—Direct



82

Lucille Elliott—for Plaintiffs—Direct

Q. Does the Library have regular hours when it is 
open? A. Yes.

Q. How many days a week is the Library open? A. 
Well, the Library is open every week-day from 8 :30 in the 
morning until 10 at night; and on Saturdays—that varies 
according to the football season, but it ’s been all Saturday 
morning; and then Sunday afternoon and Sunday’ night.

(89) Q. Miss Elliott, will you please state for the rec­
ord how many volumes does the Library at the Law School 
of the University of North Carolina have? A. 64,180, as 
of this week.

Q. Do your book holdings include the National Reporter 
System, the reports of the various states, the reports of 
the federal courts, the English and Canadian reports, the 
Annotated Case Series, the leading legal encyclopedias, the 
Federal Statutes, the state statutes, the leading textbooks, 
and the American Digest system? A. We do not have 
every state report. We have almost a complete set, but 
some of them we have not been able to get yet. They are 
rare and very expensive. There was one other thing in 
there, one other set: We do not have all of the English 
collaterals. I believe you asked that.

Q. English and Canadian Reports? A. We do not have 
all of the English and Canadian Reports. We have the 
Dominion Law Reports. We do not have the separate 
reports of Canada.

Q. How many sets of North Carolina Reports do you 
have? A. We have about seventeen sets complete, but we 
have many broken sets.

Q. What law reviews does the Library have? A. I 
couldn’t say. We have over three hundred current and 
about three hundred bound sets. Some of the bound sets 
are (90) what we call closed sets. Do you know what 
that means ? And the unbound sets, some of them have not



83

been bound. We have all of the periodicals that are in the 
Index to Legal Periodicals except two or three sets.

Q. Are you in a position to tell us what amount of 
money is spent for the operation of the Library and for 
what purposes? A. I can get the record out and read it: 
$6,768 for salaries of the two trained helpers; for books, 
including binding and repairs, $13,455; for student wages, 
$4,100—making a total of $24,323. I would like to qualify 
that a little and say that, as I said the other day, that our 
regular appropriation is 6,875 and that we had last year 
and will have this coming year a special appropriation of 
$6,580.

Q. Now the figures you gave there, does that include 
the salary of the Librarian? A. Yes, it does.

Q. Will you please state for the record how much that 
salary is ? A. $3,880, and the assistant $2,888.

Q. Miss Elliott, will you please state for the record, 
if you can, what is the valuation of the holdings in the 
Library? A. Most law libraries valued their libraries 
before the war at about five dollars a volume, that it aver­
ages that. Sometimes it is fifteen dollars, sometimes two 
and a half, but it averaged before the war five dollars a 
volume. I haven’t seen (91) what librarians think since 
the war, but it would be higher, certainly sis dollars a vol­
ume, I would think, if not higher, because books have gone 
up quite a bit.

Q. Miss Elliott, will you please state if there aren’t 
books that can’t be replaced, can’t be purchased now, law 
books that can’t be purchased or replaced now? A. There 
are many out-of-print books, if that is what you mean.

Q. And you have some of those books in your Library? 
A. Yes.

Q. I believe all the citizens of the State know you are 
soon to move into new quarters at the University. For the 
information of the Court, will you describe those facilities

Lucille Elliott—for Plaintiffs—Direct



84

Lucille Elliott—for Plaintiffs—Direct

as it will affect your Library! A. We have a receiving 
room in the basement; we have a reading room on the first 
floor; we have a librarian’s office, a typist’s office, a work­
room; off of the reading room is a little periodical room. 
On the second floor is the faculty reading room where we 
have just a little working collection.

The Court: In enumerating those volumes you 
have in the Library, do you not have many duplica­
tions !

The Witness: Yes, we do.
The Court: Do you not have a lot of books that 

are virtually obsolete and still you don’t throw them 
away!

(92) The Witness: Yes, great quantities of
books that we use very seldom.

The Court: For the information of the Court, 
there was a time when Cyc was a standard treatise 
on general law, and then it was followed by a later 
book called Corpus Juris Secondum. Did you retain 
those volumes of Cyc or discard them when you got 
in a new set?

The Witness: We try to get everything, as far as 
our budget will permit.

The Court: I am trying to find out whether you 
discarded that old Cyc or kept it.

The Witness: We always have many duplicates, 
and we try to keep just one set where it ’s been super­
seded by a later edition.

Q. (By Mr. Pearson) What is the valuation of the hold­
ings in the present Library? A. Well, I would have to 
work out the arithmetic. I can’t say exactly because I 
haven’t heard whether experienced librarians think that 
the average value is five or six or seven dollars. I would 
guess between six and seven dollars a volume.



Lucille Elliott—for Plaintiffs—Direct

Q. Where is the present library facilities? I mean de­
scribe the present Library that you have there.

The Court: She says it would be six or seven 
dollars a volume, and gave you the number of vol­
umes.

(93) Mr. Pearson: I would like her to describe 
for us the Library as it is now, the facilities, the 
reading rooms, and so on.

The Witness: You mean all cluttered up as they 
are now?

Mr. Pearson: Yes, ma’am.
The Witness: Well, in the lower reading room 

I have—I don’t quite get what you are driving at, 
but I will try my best—we have a basic collection 
down there, what we call our second-grade periodi­
cals. We have a great many state reports; we have 
the current statutes with the section to bring them 
to date, the New York Supplement; and at present 
I have all of the processing going on down there be­
cause I have been run out of my office and we have 
been run out of our temporary work-room. Up in 
the upper reading room we have the encyclopedias, 
the National Reporter System, the Federal Reports, 
except Federal Cases, the U. S. Reports, official, the 
A.L.R., and the most important periodicals that are 
published, the loose-leaf services, the text-books that 
are on reserve; the North Carolina Reports I should 
have mentioned before; the unbound periodicals and 
the indexes.

Q. The detached reading rooms, can you describe those 
to us? A. Well, most of them have the North Carolina 
Reports. They vary; it would take me some time to tell 
you about the outside reading rooms. One has just a basic 
collection. By that I (94) mean state reports, the North



8 6

Carolina Law Review, Southeastern. The senior reading 
room, the Shack we call it, has a great deal of federal law 
because they take those federal law courses, North Carolina 
Reports, Southeastern; they have a basic set too. The first- 
year reading room has the American Digest system, the 
Annotated Reports, besides a basic collection too. All of 
them have that basic collection. That’s all.

Then in the two classrooms, we have in one room the 
North Carolina Reports and in the other the Southeastern; 
and in the Law Association room we have the U. S. Re­
ports, North Carolina and Southeastern. I believe that 
about covers it.

Q. When you gave me these figures for salaries, the 
first figure you gave, was that the figure of the main Li­
brarian? A. That is my salary, the Head Librarian.

Q. At the present can you tell us how many of the total 
volumes of the Library are available for use? A. About a 
third, I should say.

Mr. Pearson; Thank you, Miss Elliott.

Cross examination by Mr. Ehringhaus :

Q. Miss Elliott, I believe you have at the Library of the 
University Law School several private collections that have 
been donated to the Law School? (95) A. Yes, we do.

Q. They are more or less kept intact? A. Some of them 
are, particularly the Founders’ Collection.

Q. Can you tell us whether or not they do not include a 
lot of books that have now been replaced or superseded? 
A. Well, I have a great many old texts and a great many of 
them have been superseded, yes.

The Court: I am not sure that I understood you 
to say how many sets of North Carolina Reports you 
had.

Lucille Elliott—for Plaintiffs—Cross



87

Lucille Elliott—for Plaintiffs—Cross

The Witness: We keep np to date about seven­
teen sets.

The Court: I understood you to say—
Mr. McLendon: She said in addition to that there 

were some other broken sets.
The Witness: Yes, we have broken sets.

Q. (By Mr. Ehringhaus) Miss Elliott, I believe you said 
that for some time a goodly portion of the volumes at the 
Law School Library have been in storage or not available 
or available some other place than the Law School building. 
Is that right! A. That’s right.

Q. At the present time only about thirty thousand vol­
umes are— A. About twenty thousand, I think would be 
better.

Q. You spoke also of a special appropriation to the Law 
(96) School Library for maintenance and reworking some 
books that were out of shape. Will you state how long that 
has been going on, that special appropriation! A. The 
special appropriation was given us for the time last year; 
it has been promised us for the coming year,

Q. Up until last year the last year the Library was not 
in very good physical shape then, I take it? A. Very, very 
poor.

Q. Do you regard this special appropriation as a regular 
thing? A. We just don’t know what we can count on.

The Court: Has the size of your Library changed 
substantially in the last ten or fifteen years or has 
it remained about this size all that period?

The Witness: We have increased about two thou­
sand volumes a year until last year with this special 
appropriation.

The Court: Did your institution get in any 
trouble with the Association of Colleges on account 
of not having enough volumes ?



Lucille Elliott—for Plaintiffs—Cross

The Witness: No.
The Court: The reason I asked you, Wake Forest 

got into some trouble of that kind. Do you remem­
ber what is the minimum amount for a college to be 
admitted by the Association of Colleges?

(97) The Witness: I looked that up the other 
day, I didn’t think there was a requirement, but 
there was. Ten thousand volumes—I think it ’s ten 
thousand—for the Association of American Law 
Schools and seventy-five hundred for the American 
Bar Association.

Q. (By Mr. Ehringhaus) You spoke of the duplications 
in sets of North Carolina Reports. I take it you also have 
duplications in other sets of books, like American Juris­
prudence or Corpus Juris? A. Yes, sir.

Q. Do you care to tell us how many sets of American 
Jurisprudence you have? A. I think we have only one 
set of American Jurisprudence. We have two sets of 
Corpus Juris Secundum; we have several sets of Federal 
2d; we have some duplication in the periodicals, the im­
portant periodicals; we have duplication in the A.L.R.; 
duplicates in texts; duplicates in some of the reporters, 
the Southeastern; duplicates in the North Carolina Stat­
utes; in the U.S.C.A.; in the House and Senate Journals, 
North Carolina; in the Public, Local and Private Laws, 
North Carolina. I imagine there are others; I just can’t 
recall them quickly.

The Court: Do you happen to know how many 
sets of Federal Reporter you have?

The Witness: Well, we have three sets of Fed­
eral 2d, (98) but just one of Federal Supplement
and Federal Reporter.

The Court: The original Federal Reporter con­
sisted of three hundred volumes?



89

The Witness: Yes.
The Court: You just have one of those!
The Witness: Yes.
The Court: How many sets of United States

Reports ?
The Witness: Well, we have one complete set 

of the official and one or two broken sets of the 
official, two sets of the Supreme Court Reporter and 
two sets of the Lawyers’ Edition.

The Court: That makes about six or seven
sets all told, doesn’t it?

The Witness: I think so, yes.

Q. (By Mr. Ehringhaus) Miss Elliott, could you tell 
us, could you make any approximation of how many vol­
umes you have in your Library, exclusive of duplications? 
A. I don’t believe I could. We have a very poor record 
system. The State has never set up any help for keeping 
records and we just have to keep it in our minds. I 
couldn’t tell you that.

Q. Miss Elliott, have you made any calculations of 
how many students you would assign to each volume of, 
say, Wigmore on Evidence, or Williston on Contracts? A. 
Yes, I have that here—no, I haven’t that. I think (99) 
the Dean had that record made. I have the number of 
copies of those texts that I have, and then to work out—

Q. Will you tell us how many copies of the set of 
Wigmore on Evidence you have, of the present, current 
edition? A. Twelve copies of the Student Edition.

Q. That is the 10-volume edition? A. No, that is the 
1-volume edition, the Student Edition.

Q. How about the 10-volume edition! A. We have two 
sets of the 10-volume edition.

Q. For instance, Williston on Contracts, the current set 
of that text? A. We have two sets of the Treatise.

Lucille Elliott—for Plaintiffs—Gross



90

Q. Do you know how many sets of the Harvard Law 
Review, for instance? A. We have one complete set and 
two broken sets of the Harvard Law Review.

Q. Do you know about the Yale Law Review? A. One 
complete set and one broken set. We have just gotten 
that this summer.

Q. The Columbia Law Review. A. One complete and 
one broken.

The Court: You stated a moment ago you had 
been adding about two thousand volumes a year to 
your Library in the last ten or fifteen years?

(100) The Witness: Yes, sir.
The Court: In getting these volumes, I assume 

you are not getting duplications of volumes you 
already have on hand unless they happen to be a 
set much used by students. Is that right?

The Witness: That’s right.
The Court: You might not want to answer this, 

but the University of North Carolina is regarded by 
some as primarily a school for North Carolinians—

The Witness: Yes, it is.
The Court: Isn’t that particularly true of the 

Law School?
The Witness: Yes, it is.
The Court: Can you tell us what percentage of 

your law students are North Carolinians?
The Witness: No; I would have to leave that to 

the Dean.
The Court: If there is no objection, I will ask 

him that right now. What about that, Dean?
Dean Brandis (A previous witness): Roughly, 

about eighty-five percent.
The Court: And how long has that been run­

ning that way?

Lucille Elliott—for Plaintiffs—Cross



91

Lucille Elliott—for Plaintiffs—Redirect

Dean Brandis: I think it ’s been fairly close to 
that ever since I have known anything about it.

(101) Q. (By Mr. Ehringhaus) Now, Miss Elliott, one 
more question: I believe you have referred at length to 
the duplications in a library. Would you say that the 
number of duplications is largely controlled by two factors, 
first, the amount of appropriations, and, secondly, the 
number of students to use the particular sets? A. Well, 
I think I should have said that sometimes we duplicate 
for members of the faculty. They will be very remote— 
Mr. Aycock’s office is way away from the others, and I 
have gotten him some duplicates, but ordinarily I would 
say your statement is correct.

Mr. Ehringhaus: All right, Ma’am.

Redirect examination by Mr. Pearson:

Q. In reference to the law books that are donated to 
the University Law School, all of those books are available 
for the use of the law students? A. Yes—not right now.

Q. No; I mean normally. A. Yes. Some of the gifts 
we have made, if they are duplicates of old things, often 
we pack those old texts, so I can’t say that all gifts are 
put right on the shelves for students, but if it ’s live ma­
terial, such as North Carolina Reports, we (102) try to 
put those right on the shelves. That’s the distinction we 
make. If it ’s superseded, old, dead stuff or historical ma­
terial, oftentimes we will pack it until we need it.

Q. You were consultant at North Carolina College at 
one time and familiar with the Library? A. I was from 
1939 to 1945. I haven’t been over there much since.

Q. You found books at your Library that are not at 
North Carolina College Library? A. Yes.

Mr. Pearson: That’s all, Ma’am.



Lucille Elliott—for Plaintiffs—Recross

Recross examination by Mr. Ehringhaus:

Q. You found books at the North Carolina College 
Library that were not at your Library, too? A. Some.

The Court: What is your familiarity with the 
Library at North Carolina College?

The Witness: I was there from 1939 to 1945 as 
consultant, and then I went back in March of last 
year and spent a little time making a survey.

The Court: Well, do you know what is in that 
Library?

The Witness: Well, in general I know. They 
have gotten some new things since I was there in 
March.

(103) The Court: Approximately how many
volumes did they have?

The Witness: They had around thirty thousand 
volumes when I was there.

The Court: Of what did it consist?
The Witness: Well, the basic material that I

have mentioned already. I can’t tell you how many 
state reports, but it was standard as to state reports 
according to the standards of the Association of 
American Law Schools.

The Court: You mean the Library was standard?
The Witness: In state reports. It had the U. S. 

Reports, one set; it had most of the basic periodicals.
The Court: Did it have the Federal Reporter

system?
The Witness: My recollection is that it had the 

full Federal Reporter system. I could tell you better 
by telling you what they didn’t have. I made a 
statement of that. Do you want me to tell you that?

The Court: Either way you prefer.
The Witness: It did not have the legal associa-



93

tions’ proceedings and reports, such, as the Bar As­
sociation Reports, the American Law Institute, 
Judicial Conference. They did not have some of 
the research materials, such as eitaters. I have for­
gotten now how many they had. I know I gave 
them some from our Library that were superseded, 
so they had a few, but they lacked some of the 
important indexes, the English Collaterals, (104) 
some of the Federal Administrators and Bibliog­
raphies. They lacked some ephemeral material 
such as state and U. S. citating pamphlet material 
and lacked some of the documents and collateral 
such as intermediate early reports and some of the 
reports prior to the Reporter system. The other 
basic material they had.

Redirect examination by Mr. Pearson:

Q, Miss Elliott, did they have the Law Reviews'? A. 
Yes.

Q. Did they have three hundred current and three hun­
dred closed, or more or less?

The Court: What was that!
Mr. Pearson: I asked her if they had three

hundred law reviews, closed or open. She has testi­
fied before there were three hundred at the Uni­
versity, closed, and three hundred current.

The Witness: I said about three hundred bound 
sets, some of which are closed sets, published a 
number of years ago. We have around three hun­
dred current publications that come out in parts, 
monthly and so forth.

I will answer your question now. North Carolina 
College doesn’t have that many. I can’t tell you 
exactly how many they have.

Lucille Elliott—-for Plaintiffs—Be-redirect



94

(105) Mr. Pearson: We thank yon, Miss Elli­
ott.

Recross examination by Mr. Ehringhaus:

Q. I understood you to say, in response to certain ques­
tions by His Honor, that the North Carolina College, so far 
as you saw it at that time, had all the basic materials and 
books? A. Yes. I think that catalogue expresses it very 
well, that they have a good working collection that is on 
the whole adequate for classroom work. That is the way I 
would characterize it.

Q. You were referring to certain materials, certain sets 
and so forth, that were lacking. You used the word “ lack­
ing.”  You meant by that, did you not, that that was mate­
rial which you considered to be necessary to make a com­
plete library? A. That’s right.

Q. And you didn’t mean to convey the impression that 
that was material that they did not have and the University 
Law School did have? A. Yes, I meant to say that; that 
the University has it and North Carolina College does not 
have it.

Q. I think earlier in your examination you referred to 
English Collaterals? A. Yes.

(106) Q. You said you did not have all of them? A. 
N o; and they do not.

Q. You also referred to the fact that over at North 
Carolina College they didn’t have it? A. Yes.

Q. In that instance—there may be more—both of them 
lacked it? A. Yes, sir.

Redirect examination by Mr. Pearson:

Q. Miss Elliott, you stated you were consultant at North 
Carolina College and aided them in making a survey some 
years ago—this year? A. In March of this year.

Lucille Elliott—for Plaintiffs— Re-recross— Re-re-redirect



95

Q. As of that time, are you in position to make a com­
parison for the Court between the libraries of the two law 
schools and to state whether or not the Law Library at 
North Carolina College is equal to the Law Library at the 
University of North Carolina Law School?

Mr. McMullan: We object.
The Court: I will let her answer it and give you 

an exception.

A. I took the Librarian’s word for what was lacking. I 
have his letter. Would you like for me to read that?

(107) The Court: I didn’t quite understand you.
The Witness: I said I took the Law Librarian’s 

word for what he lacked. They were working to­
wards standards, and I said, “ Now, what do you 
lack?”  and he said, “ This is what we lack and I 
think we should have this to qualify under the stand­
ards of the Association of American Law Schools,”  
and then he listed what he lacked, and I took his 
word for it. May I read that letter?

Q. (By Mr. Pearson) I would like to know if the 
libraries of the two law schools are equal.

Mr. McMullan: We object.
The Court: I overruled your objection a moment 

ago to the same question. You can go along and 
answer it.

A. I made a little statement here paralleling the two. 
There are so many things that you have to consider in 
answering that question. It isn’t just a matter of collec­
tion against collection, and I would like to make that 
statement.

Lucille Elliott—for Plaintiffs— Re-re-redirect



96

In judging a library this is what I had to take into con­
sideration—it’s pretty complex; it will take me some time. 
It all depends on the type of school you have. I went to 
the Dean and I said, “ What type of school do you have, 
does North Carolina College have; what kind of library 
do you have?”  I had to take into consideration the col­
lection, the building, the staff, the service, the clients and 
the appropriation. It is a complex matter. I went to each 
member of the faculty and (108) I asked them the ques­
tion: Is your Library adequate! Now adequacy has to 
do with many things, too. It has to do with whether it ’s 
a research library or just a school library and, as I said 
before, the majority of this staff, of the teaching staff, 
said: It is adequate for my teaching work. I have it all 
charted here; I think I can give you a complete answer on 
that. Out of the five that answered, all of them said that 
it was adequate for teaching, except one. He said that it 
was not adequate for his work; that he needed the early 
state reports for a class that he was teaching and he needed 
some philosophic works. As to research, one said he was 
unwilling to answer that question; one said it was not 
adequate for the research that he was doing for a case­
book—

Mr. McMullan: If your Honor please, it seems 
to us we are getting into a lot of hearsay evidence.

The Court: The answer is not exactly responsive 
to the question, the one I ruled on. You are giving 
us now statements made by members of the faculty—

The Witness: On which I based my opinion.
The Court: But you don’t have to give your

sources of information. They just asked you your 
opinion of the equality of the two libraries. You 
have given us before a description of the Library 
at the University of North Carolina; you have also 
given us a description of the Library at the North

Lucille Elliott—for Plaintiffs— Re-re-redirect



97

Albert L. Turner—for Plaintiffs—Direct

Carolina (109) College; and, in numbers, you have 
told us you have sixty-four thousand and some odd 
volumes at the University, and there are thirty thou­
sand at North Carolina College.

The Witness: That’s right, in numbers, no, it is 
not equal.

The Court: Anything further!
Stand aside.
(Witness excused.)
Mr. Carter: We would like to again, your Honor, 

invoke Rule 43(b) and call Dean Albert Turner as 
an adverse witness.

ALBERT L. TURNER, called as a witness by the plain­
tiffs, being duly sworn, testified as follows:

Direct examination by Mr. Carter:

Q. Dean Turner, would you state your name, please, 
and occupation? A. Albert L. Turner, Dean of the Law 
School of North Carolina State College.

Q. How long have you held that position? A. Acting 
Dean since 1943, and Dean since 1945.

Q. How long have you held the position as a professor 
or teacher of law at the North Carolina College? A. Since 
1941.

(110) Q. When was the Law School established? A. 
To the best of my knowledge, it was begun in 1939 and 
one student appeared and it closed that year for lack 
of students and began again in 1940 and has run continu­
ously since that time.

Q. What is the size of your teaching faculty? A. Five



98

full-time teachers, including myself, and two part-time 
teachers.

Q. What was the size of your student body as of the 
last school term! A. Twenty-eight was the highest number 
that we had.

Q. What do you expect to he the size of the student 
body in the term 1950-51? A. About the same.

Mr. McMullan: We object to that, if your
Honor please. It may depend on the result of this 
lawsuit.

The Court: I will take judicial notice of that— 
there’s the old saying of Bobby Burns: “ The best- 
laid schemes of mice and men gang aft agley. ’ ’

Q. (By Mr. Carter) You say you have four full-time 
professors, and you are Dean and a professor? A. That’s 
right.

Q. What teaching experience have those men had? A. 
Well, I think I can best give you that from a statement 
that each of them has prepared about his own experience.

( I l l )  If you would confine it to law-teaching expe­
rience—

The Court: Do you have a catalogue for your 
school similar to the one they get out at the Uni­
versity?

The Witness: Yes, sir, except that we do not
put the experience of the teachers in there. We 
have their degrees but not previous experience.

The Court: I don’t believe they have previous 
experience here in the catalogue for the North Caro­
lina University.

Mr. Carter: Yes, in the catalogue of the Uni­
versity of North Carolina Law’ School they have a 
list of teaching experience, some of it at least.

Albert L. Turner—for Plaintiffs—Direct



99

The Witness: Counsellor, I think, if that is to 
be limited to previous law-teaching experience, I 
need not read the statement.

The Court: Do you have one of those catalogues 
here available? (Inspecting catalogue) You don’t 
state where they attained their degrees or education 
either?

The Witness: No, sir.
The Court: Let’s let him go along and give it.
The Witness: On my present teaching faculty,

except for the Librarian and myself, we have no 
teacher who has had previous law-school teaching 
experience.

Q. (By Mr. Carter) What is the highest total teaching 
experience that is possessed by a member of your faculty, 
law- (112) teaching experience; that is, including their 
work at the North Carolina College? A. Excepting me ox- 
including me?

Q. Including you. A. I have taught since 1941, which 
would he nine years. The highest experience of any other 
man is three years.

Q. How many of the other men have had three years’ 
experience? A. Of those who taught last year, two had 
three years’ experience, one had two years’ experience, 
and one was a first-year teacher.

Q. What about your present faculty? A. We lost by 
resignation one of the men of last year who had the 
three years’ experience. He is being replaced by a man 
who has had no previous law-school experience.

Q. What members of your faculty have had any previ­
ous governmental experience that you would consider bene­
ficial to them in the teaching at North Carolina College? 
A. Well, one member of the faculty has had some experi­
ence in the Army, I think in the Judge Advocate General’s

Albert L, Turner-—for Plaintiffs—Direct



1 0 0

office, and I, myself, have served as Senior Attorney in 
O.P.A. for a while. I don’t know of any other.

Q. Have any of your professors practiced law? A. We 
have one man who practiced for almost a year, not (113) 
quite, and we have—that same man, I suppose, has prac­
ticed more than a year, because in the summer, when not 
engaged in teaching, he has gone hack to that office, so he 
has had nine months and two summers of practice. One 
man has practiced at least one summer, or associated him­
self with a local attorney for one summer; and I practiced 
for about a year and a half prior to my teaching experience.

Q. Am I correct that the five, including yourself, are 
full professors? A. Are full professors? No.

Q. What is their status? A. They are listed as associate 
professors in our budgetary setup.

The Court: All of them are listed as associate 
professors?

The Witness: All of them except myself.

Q. (By Mr. Carter) Do you actually have professorial 
ranking, as a law school? A. We do not have a well estab­
lished basis for ranking; that is, the criteria by which you 
say a man serves so many years in one rank and then ad­
vances to another.

Q. Would you mind, Dean Turner, giving us the salary 
scale at present in the Law School? A. Yes; it ranges from 
$4,600 to $7,000.

Q. Would you break that down, please? (114.) A. By 
the names of the teachers or the salary received?

Q. The number would be sufficient. A. There are two 
teachers receiving $4,600' a year and two who receive $5,040, 
and one who receives $7,000.

Q. What does your Librarian receive? A. $4,000.
Q. What members of your faculty have served on North 

Carolina legislative commissions? A. None that I know.

Albert L. Turner—for Plaintiffs—Direct



1 0 1

Q. Dean Turner, you have seen the document which 
Dean Brandis provided for ns, showing the publications by 
members of the faculty of the University of North Carolina? 
A. I have not seen it.

Q. Have you any document there? A. No.
Q. Would you be kind enough to prepare us a docu­

ment showing the publications of the members of your 
faculty? Have any of them published any documents? A. 
I don’t recall any major work.

Q. What is the valuation of the Law School plant of 
North Carolina College? A. Thirty thousand dollars is 
what the Business Manager gave me.

Q. Are you accredited by any accrediting agency?
(115) A. Yes, by the American Bar Association and by 
the Board of Legal Examiners of the State of North Caro­
lina.

Q. What type of accreditation have you received from 
the American Bar Association? A. Provisional, for two 
years.

Q. I take it that you are not accredited by the Associa­
tion of American Law Schools. You are not a member of 
the Association of American Law Schools ? A. We are not.

The Court: Have you made any application yet?
The Witness: Our application is pending and it 

will be considered in December.
The Court: Are you acquainted with the mini­

mum requirements for admission?
The Witness: Yes, we have a copy of them. I 

don’t remember them offhand.
The Court: Are you prepared to state whether 

or not, in your opinion, you have met the minimum 
requirements for admission to the Association?

The Witness: In my opinion we have.

Albert L. Turner—for Plaintiffs—Direct



1 0 2

The Court: The application hasn’t been in a
position to be acted upon until December?

The Witness: Until December.

Q. (By Mr. Carter) How many classrooms do you have?
(116) A. Three.

Q. What are their capacities? A. Well, I thought until 
this year, when they borrowed them for the Summer School 
that they held about twenty persons, but they got thirty or 
thirty-five in them. They were designed for not more than 
twenty students.

Q. Do you have offices for members of the faculty? A. 
Yes, we do.

Q. Would you describe them, please? A. There was an 
annex added to the present building that we are using as a 
law school and in that construction there were four rooms 
primarily made for classrooms. One of those rooms has 
been converted into an office and has a desk, that is, one 
desk for each of the two teachers who occupy it. There is 
a small office adjoining my secretary’s office, or the secre­
tary of the Law School’s office, which is occupied by one 
teacher, and one teacher had a choice of becoming the third 
man in this classroom or using his own classroom in which 
no other classes are scheduled except his own, and he pre­
ferred to do the latter, so one man does use his classroom 
as an office.

Q. Do you have any study rooms for the students ? A. 
There is a study space in connection with the Library. We 
don’t have any study room, as such.

(117) Q. Do you have any places for students to study 
and use typewriters if they desire? A. No.

Q. Do you have any facilities for typing in the Law 
School? A. For students? Well, the students actually 
this year did get a typewriter from us and put it in sort 
of a remote corner of the Library and used it this past 
year. That was an improvised arrangement.

Albert L. Turner—for Plaintiffs—Direct



Albert L. Turner—for Plaintiffs—Direct

Q. They do use the typewriter at the present time, or 
last year, in the Library! A. Yes, that is where it was 
used.

Q. What type of degree does your school offer! A. 
LL.B. degree.

Q. How many courses? A. We have listed in the 
catalogue twenty-six courses. There is one course, Legal 
Writing, which also includes Legal Bibliography, which is 
often listed as a separate course. We have not so listed 
it, so I would say we do offer twenty-seven different 
courses.

Q. Mr. Turner, according to the catalogue of the Uni­
versity of North Carolina Law School that has been sub­
mitted in evidence, a course is listed as being offered called 
Brief Making. Do you have any course in Brief Making 
in your Law School? A. We do not.

(118) Q. In the catalogue of the University of North 
Carolina there is a course listed called Business Associa­
tions. Do you have any course of Business Associations 
offered? A. As Dean Brandis explained, that name is ap­
plied differently. We have a course in Agency and Part­
nerships and a separate course in Corporations. Some­
times those are combined and called Business Organiza­
tions.

Q. There is a course listed in the catalogue of the Uni­
versity of North Carolina Law School called Damages. 
Do you have any similar course offered at your school? 
A. We do not.

Q. And Debtors’ Estates—do you have any such course 
offered at your school? A. We do not.

Q. Federal Jurisdiction—do you have any such course 
offered at your school? A. We do not.

Q. Future Interests—do you have a similar course? 
A. No.

Q. Government Regulation of Anti-Trust Business—do 
you have any such course? A. No.



104

Q. Jurisprudence—do you have any such course at your 
school? (119) A. Not as such.

Q. Do you have a similar course ? A. I think in Legal 
Method the teacher does encompass some principles of 
jurisprudence.

Q. A course in Legislation? A. We do not.
Q. In Municipal Corporations? A. We do not.
Q. In Unfair Trade Practices? A. We do not.
Q. Wage and Hour Law Seminar? A. We have a 

course in Labor Law, but not a special situation like that, 
if I understand it properly.

Q. How many courses in Taxation do you offer at the 
North Carolina College, if any? A. One.

Q. The University of North Carolina offers two, but 
you only offer one. Do you have a summer school, teach 
students in summer session at your Law School? A. We 
do not.

Q. Does your school have a chapter of the Order of the 
Coif? A. No.

Q. Do you have a Law Review? A. No.
(120) Q. Dean Turner, will your Librarian be here? 

A. I think not. He is not here now; he’s away in St. Louis 
on vacation.

Q. I will have to, then, ask you some questions about 
your Library. How many volumes do you hold in the 
Library? A. Perhaps, Counsellor, I should explain that 
I can’t answer this from personal knowledge. I have a 
copy of the reports made by the Librarian, and especially 
the report we used in making application to the Associa­
tion of American Law Schools, but I don’t have the per­
sonal knowledge of the holdings.

Mr. McMullan: We have no objection to his
testifying.

Q. On the basis of your information, how many volumes 
do you have? A. Thirty thousand.

Albert L. Turner—for Plaintiffs—Direct



Q. Do they include the National Reporter System, Re­
ports of the various states, Reports of the Federal Courts, 
English and Canadian Reports, Annotated Case Series, 
Leading Legal Encyclopedias, Federal Statutes, State Stat­
utes, and some of the leading textbooks? A. Well, not all 
of those that you mention. Perhaps it would be better— 
and, yet, most of them. That is, we have all of the Official 
Reporter System, or, rather, all of the National Reporter 
Systems. We have the reports for three or four states 
prior to the Reporter System. As you know, that (121) 
would give us complete reports for those in the system. 
We have five complete sets of North Carolina Reports. We 
have English Reprint and one set of the English Reports. 
We do not have the Canadian Reports, and I think there 
was another she mentioned that we do not have. We have 
the U. S. Statutes at large and we have all of the Federal 
Reports.

The Court: That includes United States Supreme 
Court Reports?

The Witness: Yes, sir, in three sets, U. S. Offi­
cial, two sets of the Law Edition and one set of the 
Supreme Court Reporter.

The Court: What about Encyclopedias?
The Witness: We have the leading Encyclope­

dias, the leading textbooks.

Q. (By Mr. Carter) How many Law Reviews do you 
have, sets of Law Reviews? A. The Librarian’s report 
shows twenty-six complete sets of Law Reviews.

Q. Then I take it that you do not have, as the Univer­
sity of North Carolina does have, all of the periodicals 
listed in the Index to Legal Periodicals? A. We do not.

Q. Are you able to give any testimony at all as to 
duplications, or don’t you know about them? (122) A. 
Yes, I know to some extent about them. We have duplica­
tions in the National Reporter System, I think perhaps in

Albert L. Turner—for Plaintiffs—Direct



106

all of those except the Supreme Court Reporter, broken 
sets, not full sets. We have, naturally, some duplications 
in textbooks most frequently used by the students; and I 
have already mentioned five sets of the North Carolina 
Reports.

Q. Do you have a full-time Librarian! A. We do have, 
yes.

Q. What are his or her qualifications! A. The Librarian 
has a Bachelor of Arts degree and a Bachelor of Law 
degree.

Q. Does your Librarian have any full-time or part-time 
assistants? A. Last year he had two student assistants, 
and for three months he had a full-time temporary as­
sistant.

Q. Are you able to state, either from your records or 
from personal knowledge, the average amount of time 
spent in the Library by your full-time Librarian? A. Well, 
he is required to spend seven hours five days a week and 
a half-day on Saturday. He puts in voluntarily a great 
deal more time. The two student assistants put in four­
teen hours each a week; and, of course, the temporary 
person who helped him put in seven hours a day for the 
three months that she worked.

Q. Does your Library have regular hours during the 
regular term? A. Yes, we do.

Q. What are they? A. From 8:30 to 1:00 and from 
2:00 to 5:45 and from 6 :45 to 9:45; on Saturday from 8:30 
to 12:00 and then from 2 :00 to 6 :00; and on Sunday from 
2 :00 to 6 :00.

Q. You are open from 8:45 in the morning— A. 8:30.
Q. 8:30 to 1 :00—that is four and a half hours? A. Yes.
Q. And you are open again— A. From 2 :00 until 5 :45.
Q. That would be three hours and forty-five minutes, 

which would make a total of eight hours and fifteen minutes. 
A. And again in the evening 6 :45 to 9 :45.

Albert L. Turner—for Plaintiffs—Direct



107

Q. So it ’s open a total of about eleven or twelve hours 
a day? A. Yes.

Q. I think you testified your Librarian spent seven 
hours in the Library? A. Yes.

Q. Who is in the Library every day during these other 
five hours? (124) A. The student assistants are there.

Q. You have two student assistants who spend about 
fifteen hours per week in the Library? A. About fourteen 
hours per week. I said, if you will recall, that the Librarian 
was required to be there seven hours but put in more 
time than his requirement.

Q. The holdings which you have in the Library, are 
they readily accessible at all times to the students and to 
members of the faculty? A. Well, yes, they are; that is, 
they are out in the open, and in that sense they are per­
haps too accessible.

Q. What about the books which are in the Librarian’s 
office; are they accessible when the Librarian is not there ? 
A. Well, sometimes yes and sometimes no. I have a key 
to the Librarian’s office, and if I am there and he is not 
they can be gotten, and sometimes he leaves his key with 
the student assistants and they can make them accessible.

Q. What about the books in your office, are they ac­
cessible when you are there? A. They are.

Q. What about when you are not there? A. They are 
not accessible, but, as I recall, we have duplicates of every­
thing I have. What I have is my working library.

(125) The Court: You say you had an enroll­
ment of last year and expect an enrollment of ap­
proximately that many this year. Do you recall 
how many students you had year before last?

The Witness: We had about twenty-nine. I
think our highest registration year before last was 
thirty-two.

Albert L. Turner—for Plaintiffs—Direct



108

The Court: A good many of your students, I 
take it, are first-year students?

The Witness: Yes, sir, they are.
The Court: That is not only true in Law School 

but in other college work?
The Witness: Yes.
The Court: You say the highest enrollment has 

been thirty-two ?
The Witness: Thirty-two.
The Court: The school hasn’t been going long 

enough to have any regular student body; didn’t get 
started until 1940, so the war interfered with it im­
mediately?

The Witness: Yes, sir.
The Court: Did you continue to operate a law 

school during the war?
The Witness: During the war we shifted to night- 

school classes and during that period some of the 
young business men of Durham came to the Law 
School and received their legal education, as a four- 
year night-school course, and after the war we dis-
(126) continued the night school.

The Court: Dean Van Hecke was the Dean of 
your school, was he not?

The Witness: Before he left to go into the gov­
ernment work.

The Court: All the time he was Dean of the Uni­
versity of North Carolina Law School he was Dean 
of this school until he retired to go into war work?

The Witness: I am not sure, your Honor, just 
when Dean Wettach assumed his duties as Dean.

The Court: Dean Wettach did not become Dean 
of your Law School?

The Witness: No.

Albert L. Turner—for Plaintiffs—Direct



109

The Court: You succeeded Dean Van Hecke, first 
as Acting Dean and then as Dean!

The Witness: Yes, sir.
The Court: You have listed here in your cata­

logue, I notice, in the faculty, Frank L. Caldwell, 
and you put there “ Resigned as of September 1, 
1950” ?

The Witness: As of this coming September.
The Court: Then you have a Visiting Professor, 

Frederick Bays McCall. Did he do some teaching 
work this past year?

The Witness: Yes.
(127) The Court: And is it contemplated he will 

do some this coming year ?
The Witness: Yes.
The Court: He is a member of the University of 

North Carolina faculty, is he not?
The Witness: Yes, sir.

Q. (By Mr. Carter) What were the expenditures of the 
Law School for the past year?

The Court: In order to clarify the record, you 
did not include Mr. McCall as one of the regular 
members of the faculty, did you?

The Witness: No. I said we had two part- time 
teachers, and that included Mr. McCall and Profes­
sor Bryson, of Duke University.

Q. (By Mr. Carter) I want to find out, if 1 may, the ex­
penditures of the school. How much was expended and, 
if you can, break it down for me, for the last year? A. 
Salaries and wages, $35,608; books, $4,424; supplies and 
materials, $70.00; travel expense, $118.00; printing and 
binding, $450.00; postage, telephone and telegraph, $50.00; 
equipment, $794.00; and repairs and alterations, mainly to

Albert L. Turner—for Plaintiffs—Direct



n o

typewriters and machines, $6.00, making a total for all ex­
penditures of $41,520.00.

Q. Those are your total expenditures? (128) A. 
Total expenditures.

Q. Including the Library? A. That’s right.
Q. Mr. Turner, would you describe for us your Law 

School plant? What is the size of your building? A. I 
haven’t done the addition. The classroom space is 819 
square feet, the office space is 809 square feet, and the 
Library space, including the reading room for students, is 
3,044 square feet.

Q. How many stories is it? A. One.
Q. Is it brick or frame? A. Frame, wood.
Q. Is it new or old? A. The main part of it is an old 

building. There is a new annex of the four classrooms.
Q. How old is the main building? A. I really don’t 

know. It is one of the older buildings at the College.
Q. Was it built to house a law school? A. No, it was 

built as an auditorium.
The Court: Is there any provision there now for 

a new building?
The Witness: The plan is that the present

Library will (129) become the Law School build­
ing when the new Library is completed and the books 
are moved into it.

The Court: The present Library building?
The Witness: The present general Library.
The Court: For the College?
The Witness: For the College—to be used as the 

Law School building, to be remodeled.
The Court: You are building a new Library for 

the College?
The Witness: Yes, sir.

Albert L, Turner—for Plaintiffs—Direct



I ll

Q. (By Mr. Carter) How much money is this proposed 
remodeling of the old Library to house the Law School in 
the future, how much money has been set aside or allocated 
to that job! A. I don’t known exactly. The architect 
estimated that it would take twenty thousand dollars to do 
the work as planned.

Q. I just want to be sure; I think in answer to one of my 
questions in regard to the publications of the members of 
your faculty, I believe your answer was that there had been 
none that you knew of. Is that corect? A. That’s correct.

Q. Dean Turner, you were here this morning and you 
heard the testimony of Dean Brandis, describing the Law 
School at the University of North Carolina. Considering 
your own testimony and considering his testimony, would 
you say that the Law School (130) at the North Carolina 
College for Negroes was equal to the Law School of the 
University of North Carolina? A. May I explain my an­
swer ? I would like to say that we think we can do a good 
job of teaching, and perhaps in many instances maybe bet­
ter. That is a matter of pride in our own Law School. 
I think that from the point of view of reputation and age 
and traditions we would not be the equal of the University.

Q. Are you equal in terms of faculty? A. No, not from 
the point of view of experience. I would also like to say 
there, too, that we have young men and they work diligently, 
and sometimes, from my own experience, the challenge to 
a younger teacher and his interest in developing and learn­
ing the subject that he is teaching makes of him a very good 
teacher, but, all things being equal, I think the nod would 
go to those with experience.

Q. You would not, then, say that you think your school 
is equal to that of the University of North Carolina? A. 
From my personal knowledge, I couldn’t speak, because I 
don’t known anything about the University.

Albert L. Turner—for Plaintiffs—Direct



1 1 2

Mr. McMullan: Your Honor, we object to coun­
sel’s statement, because be said in some respects it 
was better, tbat be could do a better teacbing job.

The Court: What is your opinion about the rela­
tive (131) value of teaching a smaller group or a 
larger group ? You have twenty-eight in your school, 
as I understand it, and five regular teachers there, 
and at the University of North Carolina they have 
about two hundred and eighty and they have ten 
teachers.

The Witness: I think there is room for honest 
disagreement on that, your Honor. I have never 
taught a large law class and I have accustomed my­
self to the small one, and I think we can do a better 
job with a small class; just how small I am not pre­
pared to say.

The Court: I don’t suppose it would be em­
barrassing to you to ask you what you age is ?

The Witness: No.
The Court: How old are you?
The Witness: Fifty years old.
The Court: Where did you study law?
The Witness: I went to Western Beserve Uni­

versity in Cleveland, Ohio.
The Court: How many law students were in that 

school?
The Witness: In my freshman class there were a 

hundred and five students.
The Court: What year was that?
The Witness: In 1924, when I began. I com­

pleted the work in 1927.
The Court: How many years were you there?
(132) The Witness: Three years.
The Court: How many were in your graduating 

class?

Albert L. Turner—for Plaintiffs—Direct



113

The Witness: Seventy-five.
The Court: Was that a law school where whites 

and Negroes attended!
The Witness: Yes, that’s right.
The Court: What proportion of those were mem­

bers of your race?
The Witness: There were never more than two 

or three Negro men in one class during the time 
I was there.

The Court: There were more than that during 
your freshman year, were there not?

The Witness: No, not more than three.
The Court: You mean not more than three

Negroes in the total freshman class?
The Witness: That’s right.
The Court: And the same thing then for the

junior and senior?
The Witness: Perhaps not that many always

with junior and senior classes.
The Court: I suppose 1924 is out of date now, 

but what system of teaching did you use there?
The Witness: Well, we used the case system

there—and I was about to say, with respect to this 
small class, it is my (133) belief that a poor or 
mediocre student would certainly be better off in a 
small class. Of course, a law school doesn’t want 
to encourage poor or mediocre students too much, 
but you do get them.

The Court: It takes time to find out whether
you have that kind, doesn’t it?

The Witness: Yes. Perhaps the student with 
higher than average ability would profit more by 
a large class.

Q. (By Mr. Carter) Dean Turner, with the facilities 
and the advantages of the setup under which Dean Brandis

Albert L. Turner—for Plaintiffs—Direct



114

is operating, do you feel that if you were operating with 
such a setup you could do a better job than you are doing- 
now! A. With respect to preparing students for research 
and perhaps for some types of administrative duties, with 
respect to attracting a larger number of students, and per­
haps good students, I would say yes.

Mr. Carter: That’s all.

Cross examination by Mr. McMullan:
Q, Dean Turner, do you know why you were character­

ized as an adverse witness by counsel for the other side 
in this case! A. No. I wondered, but I didn’t know.

Q. You are not a party to this action! (134) A. No.
Q. Have you got any interest in it except to tell exactly 

what is going on in your Law School! A. None at all.
Q. Dean Turner, what degrees do you hold! A. I have 

the A.B. degree, the LL.B. degree, the Master’s degree, 
and the Ph.D. degree.

Q. You spoke of the visiting professors and mentioned 
Mr. Edwin C. Bryson. What course does he teach! A. 
He teaches a course in North Carolina Practice, trial and 
appellate practice, which is mainly North Carolina practice.

Q. How long has he been teaching at North Carolina 
College! A. Last year was his second year of offering 
that course.

Q. How many hours a week—is that the way you meas­
ure it! A. The course carries three hours’ credit. He 
comes twice a week, but the students do extra work in con­
nection with the Moot Court phase of the class and for 
the extra work they get an extra hour’s credit.

Q. Can you tell us how long Mr. Bryson has been 
engaged in the profession of teaching law! A. I really 
don’t know. I t ’s been a goodly number of years at Duke.

The Court: Is that Judge Bryson!
Mr. McMullan: Judge Bryson’s son.

Albert L. Turner—for Plaintiffs—Cross



115

(135) Q. How old a man is he? A. Between forty-five 
and fifty, I would say.

The Court: He is a member of the faculty at 
Duke University Law School?

The Witness: Yes, he is.

Q. (By Mr. McMullan) By the way, do your students 
have access to the Duke Library when they want to use it? 
A. I don’t know how to answer that. The teachers have 
gone and obtained whatever books we wanted, but the 
students I don’t think have made a practice of going over 
there.

Q. Mr. Frederick B. McCall you say has been teaching 
as visiting professor. Is he an all-time professor; does 
he have any other business except teaching law? A. He is 
a full-time professor at the University of North Carolina.

Q. What courses does he give at your institution? A. 
He teaches mainly Real Property courses, a course in Titles. 
He has offered a course in Wills every year. Mr. McCall 
has taught with us almost every year since the beginning 
of the school.

Q. Can you tell us how long he has been teaching? A. 
Over twenty years, I would say.

Q. Dean Turner, you were asked about whether or not 
you gave certain courses, Business Associations and Dam­
ages. What (136) do you mean by a course in Damages ? 
A. Well, it would be a course acquainting the students with 
the law of damages.

Q. Do you mean to say you don’t teach the law of 
damages and breaches of contract and tort actions in con­
nection with Torts and Contracts? A. I was coming to 
that. We do cover it in these other courses to some ex­
tent, but not as a separate course.

Q. He asked you about Debtors’ Estates. What does

Albert L. Turner—for Plaintiffs—Cross



116

that mean? A. I think it is descriptive; the term describes 
the course.

Q. What do you teach under the head of Debtors’ 
Estates? A. I never taught it. I don’t think I ever taught 
a course in Debtors’ Estates, so I would have to say what 
appears to me should be taught in it.

Q. What other courses would cover that same general 
subject? A. Well, I suppose under Wills, Administration—

Q. Do you teach that? A. Yes, we do; we have some­
thing about the settling of debtors’ estates. We have 
Credit Transactions. You would have some elements of 
Debtors’ Estates in the course in Credit Transactions 
which we teach.

Q. I believe I will ask you to tell his Honor what 
courses you do teach in your Law School. (137) A. 
Agency; Contracts, for two semesters; Criminal Law and 
Procedure; Legal Method; Legal Writing, which I said 
before includes Legal Bibliography—

Q. You were asked before if you taught Legal Bibli­
ography? A. No, I volunteered the statement about Legal 
Bibliography. I said it was included in the course in Legal 
Writing. Personal Property, Real Property, Torts. Then 
we have Administrative Law, Constitutional Law, Conflict 
of Laws—

Q. What courses, by the way, do you teach? A. I have 
taught mainly Constitutional Law, Contracts, and some­
times Wills— (continuing) Conflict of Laws; Corporations; 
Credit Transactions; Domestic Relations; Equity; Evi­
dence; Insurance; Labor Law; Negotiable Instruments; 
Pleading; Taxation; Titles; Trial and Appellate Practice; 
Trusts; and Wills.

Q. Is that a copy of the page from your catalogue? A. 
Yes.

Q. Call attention to the page. A. Pages 12 and 13.

Albert L. Turner—for Plaintiffs—Gross



117

The Court: That hook has not formally been
offered in evidence. I have it before me and would 
like it to be put in by one side or the other.

Mr. McMullan: It hasn’t been offered. When it 
is time we will offer that whole catalogue.

Q. (By Mr. McMullan) Dean, are you familiar with 
the required (138) courses, required by the Board of 
Law Examiners of the North Carolina State Barf A. Yes.

Q. I ask you whether or not you meet the requirements 
in courses covered in your school. A. We do, yes. We 
don’t offer all of the optional courses, but we offer a suffi­
cient number of the optional courses to satisfy the number 
that a student must take.

Q. You offer all of the required courses! A. We offer 
all of the required courses, yes.

Q. Now, Dean, I ask you about the question of salaries, 
as to whether or not the basic salaries in your institution 
are not exactly the same they are in the University of 
North Carolina Law School. A. In the Law School!

Q. Yes. A. It would be difficult to answer that because 
we do not have the same scale of rank.

Q. I am asking about the basic salaries.
The Court: An associate professor in your fac­

ulty gets the same pay as an associate professor at 
the University of North Carolina, doesn’t he!

Mr. McMullan: With the same experience, the 
same number of years of teaching?

(139) The Witness: I can’t answer that,

Q. (By Mr. McMullan) You say there is not any definite 
scale of advancement of salaries from year to year? A. 
That’s right; we do not have a rank and tenure program 
definitely established.

Q. Dean, about your Law School Library, I understand

Albert L. Turner—for Plaintiffs—Cross



118

that lias all been accumulated since the school started in 
1939? A. That’s right.

Q. To what extent do you have any dead and discardable 
material in your Library? A. Well, we have a few books 
that have been given to us that we have taken out of cour­
tesy that aren’t of too much value, but we don’t want to dis­
courage donors by that statement.

Q. I ask you, by and large, if your Library isn’t a mod­
ern, up-to-date library? A. For the most part, yes.

Q. You were telling us that you have plans for a new 
building down there, Dean. Where is that building located 
with respect to the main building on the campus? A. I t ’s 
located slightly south, I would say, of the main building. 
It ’s down in the center of the circle that leads into the main 
entrance of the school or college grounds. It is a centrally 
located building.

(140) Q. I will ask you to look at this picture, please, 
and tell us what it is. A. This is a picture of the present 
Law School building.

Q. That, you say, is a front view of the building you are 
now using? A. That’s right.

Q. You told counsel it was an old building. I will ask 
you if it was remodeled and worked over for the purposes 
for which it is now used. A. The answer to that is “ Yes.”

Q. When was that done? A. Last summer. That is 
another view of the same building (referring to photo­
graph).

Mr. McMullan: I guess we had better mark these 
in some way.

The Court: You have identified 1 and 2. Make 
the entry that the witness identified photographs 1, 
2, 3, and on down the line.

Q. (By Mr. McMullan) What number is that, Dean? A. 
This is No. 4, and this is a view of the stacks and a portion 
of the reading room.

Albert L. Turner—for Plaintiffs—Cross



119

The Court: A part of the Library, isn’t it?
The Witness: That is part of the Library. The 

near end shows the portion of the reading room 
where the students study.

(141) Q. What is the next one we have! A. That is a 
classroom, one of the four classrooms.

The Court: No. 5?
The Witness: No. 5, yes, sir.

Q. Then the next one? A. Is a portion of the reading 
room.

The Court: Wliat number?
The Witness: This is No. 3 now, a portion of the 

reading room in the Library.

Q. What building is this, Dean Turner? That is No. 6. 
A. This is now the present Library building.

Q. Is that the building you plan to occupy? A. It is.
Q. What are you waiting fo r ; why are you waiting to go 

into that building? A. A new Library, a general Library 
for the College, is in the process of completion now, new 
construction, and we are waiting until it is finished.

Q. When is it planned that that building will be com­
pleted? A. I have been told it is expected to be completed 
in about eighty days, almost three months.

Q. What is the next picture I hand you? A. This is one 
of the reading rooms in the present general Library of the 
College. That is No. 7.

(142) Q. Then the next one? A. This is No. 8, which 
is a second reading room in the present general Library 
of the College.

Q. And the next one? A. This is a room that is now­
being used for instruction in connection with the School of

Albert L. Turner—for Plaintiffs—Cross



1 2 0

Library Science, and this is in the general Library of the 
College.

Q. And the next one? A. This is a room, an L-shaped 
room, which is being used now in the College Library for a 
teaching room in connection with the School of Library 
Science.

Q. The next one? A. This is a part of the desk for 
charging out books and the card catalogue. That is No. 12.

Q. The next one? A. This is No. 13, which is a study 
room at the rear of the stacks on the main floor of the regu­
lar Library.

(The photographs of buildings and facilities 
identified and described by the witness are marked 
as Defendants’ Exhibits 1-A, and 2 through 13, in­
clusive.)

Q. You stated that plans were being made by an archi­
tect for the remodeling of the present Library building 
when it is changed over to the Law School building?
(143) A. That is correct.

Q. What architect is doing that work? A. I t ’s George 
Watts Carr, is it?

Q. I only have one copy of this set of drawings. Will 
you tell us what that drawing is? A. This is a drawing- 
showing the proposed changes in the present general li­
brary building that will convert it into use for the Law 
School.

Q. What floor is that a plan of? A. On the right is the 
lower or basement level floor, and on the left is what you 
might call the first floor, the main level.

Q. Have you been consulted about the changes desired 
to be made in that building for teaching purposes of the 
Law School? A. Yes, I have.

Q. Have you approved those plans? A. Yes, I have.

Albert L. Turner—for Plaintiff's—Cross



1 2 1

Q. In your opinion, will they be suitable for the pur­
poses for which they are to be used! A. Yes.

Q. I hand you another drawing. A. It looks like the 
same thing.

Q. That is what floor there! A. These are really the 
same thing. The lower level is on (144) the right and 
the main floor on the left.

Mr. McMullan: We offer these, your Honor, to 
get them marked.

(The two drawings referred to are marked as 
Defendants’ Exhibits 14 and 15.)

Q. (By Mr. McMullan) Can you tell us, Dean Turner, 
about how many square feet of space will be available in 
that building when you move in? A. I have some figures 
on that; I will have to look at those. Here again I don’t 
have totals. Classroom space, 1,967 square feet; office 
space, 856 square feet; library space, 2,750 square feet; 
student work room, 299 square feet; student lounge, 526 
square feet; student activity room, 156 square feet. There 
are, of course, some odd spaces, closets and lavatories, that 
aren’t included here.

Q. Have you got the figures here as to the footage in the 
present building, the total and amount per student? A. 
Yes, it is 171 square feet.

Q. Per student? A. Yes, per student.
Q, What will it be in the new building? A. Assuming 

the same size student body, it will be 313 square feet.
Q. How about the offices for the teaching staff in the new 

(145) building? A. Well, the plan is—we have now four 
offices about 8 by 8 feet in size, off the stacks of the main 
floor of the Library. The plan calls for a duplication of 
those same four on the first-stack level, which will give 
eight offices for teachers. Of course the Dean will very

Albert L. Turner—for Plaintiffs—Cross



1 2 2

probably use the office now used by the general College 
Librarian and provision will be made for a Librarian’s 
office.

Q. Tell us about the space for the Library. A. Well, 
there are three levels of library stacks and the totals of 
those three levels is 2,750 square feet. I personally asked 
the architect about room for expansion on the basis of 
the books we now have, and he said that we would have left 
from thirty to forty percent of the space that we now have, 
which will not be filled by the books we have, so that we will 
have that much room for additions to our Library.

Mr. McMullan: We offer that drawing, the archi­
tect’s drawing.

The Court: I notice that one of the plaintiffs in 
this case withdrew because he was not a citizen of the 
state. How many of your students are not residents 
of North Carolina?

The Witness: Our present catalogue shows that 
during last year we had twelve of the twenty-eight 
students who did not (146) state their residence 
as being in North Carolina.

The Court: What about the year before ?
The Witness: I think it ’s been just about like 

that.
The Court: Are you prepared, Dean, to tell us 

for the record what degrees the North Carolina Col­
lege offers?

The Witness: North Carolina College offers the 
Bachelor of Arts, Bachelor of Science degrees, and 
the Master’s degree in some fields.

The Court: Do you have any graduate school
other than in law?

The Witness: Yes, it offers the degree of Master 
of Arts and Master of Science, the Master of Science 
degree in biology and chemistry and physics, I

Albert L. Turner—for Plaintiffs—Cross



123

think; the Master of Arts degree in history and 
sociology, English; and an Education degree for 
teachers.

The Court: You told us about the law degree; it 
just offers one law degree, the LL.B?

The Witness: That’s right.
The Court: It doesn’t have a school of phar­

macy?
The Witness: No, it does not.
The Court: What is the total student body?
The Witness: I have a catalogue of the general 

College here. It seems to me that the total is 1,259 
for the regular session.

(147) The Court: That includes all students?
The Witness: That’s right.

Q. (By Mr. McMullan) Dean Turner, referring to a 
question asked you by the Judge as to the residence of 
some of your students, I notice one who was from Pennsyl­
vania, two from New York, one from Washington, D. C. 
Do you know any reason why they prefer to attend your 
school rather than go to law schools up there? A. I do 
not. I haven’t questioned them as to the basis of their 
choice.

Q. In those states, do you know whether or not segre­
gation is practiced in the law schools. Pennsylvania and 
New York? A. No, it is not.

Q. Some questions were asked about the degrees. Can 
you tell us any reason why your institution couldn’t offer 
the degree of J.D. if it desired to do so?

Mr. Marshall: We object to that question. Is it 
whether they do or not.

Mr. McMullan: It is just some honor they attach 
to a degree.

Albert L. Turner—for Plaintiffs—Cross



124

The Court: It is not offered in the catalogue.
What they could do I don’t believe is necessary.
I will sustain the objection.

(148) Q. (By Mr. McMullan) Here is one other picture 
I will get identified. Tell us what that photograph is, 
please. A. This is the entrance to the present College 
Library. This seems not to belong to that other series. 
It is also the building that the Law School will occupy 
after its conversion.

(The photograph referred to is marked as De­
fendants’ Exhibit 16.)

Q. Dean Turner, has the State made available money 
necessary for the cost of changing the present Library 
building? A. It is my understanding that has been done.

Q. What is the picture that I hand you here? What 
number is that? A. This doesn’t have a number. This is 
the new Library building, General Library building, now 
under construction.

Q. Dean Turner, do you know what the present building 
program at North Carolina College involves in the way of 
expenditure of money, appropriation of money? A. No. 
I am sure the President could give better testimony on 
that than I.

Mr. McMullan: That’s all.
(The photograph identified by witness marked 

Defendants’ Exhibit 17.)

Redirect examination by Mr. Carter:
Q. Dean Turner, how much money was spent on re­

modeling the (149) present building in which you are 
now housed? A. It was generally stated, Counsellor, that 
twenty thousand dollars was made available for it. How

Albert L. Turner—for Plaintiffs—Redirect



125

much was actually spent I don’t know.
Q. Dean Turner, you have stated that the new Library 

will be completed within eighty days ? A. That is my infor­
mation, yes.

Q. Will the new Library be available within eighty 
days! A. I don’t know.

Q. Isn’t it a fact that a central heating plant has to be 
built which will heat the new buildings! Do you know that 
to be a fact? A. That is generally stated, yes.

Q. Won’t it be necessary, then, to build that heating- 
plant before the Library will be able to be moved! A. I 
would assume so, if you are going to use it during the 
winter.

Q. Dean Turner, you have listed, I believe, Constitu­
tional Law as a course taught at your school. Was that 
course taught 1949 to ’50, last year ! A. Last year it was 
not, no.

Q. Are all of the thirty thousand volumes which you 
listed as the holdings of your Law School, are all those 
volumes in the present Library and available to students? 
(150) A. According to the Librarian, they are.

Q. There is no substantial portion of those holdings 
stored elsewhere, unavailable? A. He says not. Now we 
have some books stored in an old building, but he says 
they are not included in his count.

Q. How much time do the two visiting professors, Bry­
son and McCall, how much time do they spend at the Law 
School? A. Other than their teaching hours?

Q. How many courses do they teach, how many hours 
per week? A. Mr. McCall teaches one course a semester. 
I t ’s a three-hour course and, for his convenience, we have 
an arrangement by which he comes over twice a week and 
spends an hour and a half each time.

The Court: Normally, it would be one hour?
The Witness: Normally it would be one hour.

Albert L. Turner—for Plaintiffs—Redirect



126

The Court: But he doubles up!
The Witness: And comes for an hour and a half 

two days. He is there for a few minutes after class, 
talking with the students. Other than that he doesn’t 
spend any time there.

Q. (By Mr. Carter) What about Professor McCall! A. 
That is McCall. Professor Bryson conies twice a week and 
spends an hour, and sometimes he puts in some extra hours 
in connection with the Moot Court work.

Q. Do either of those teachers have offices at your 
(151) Library where the students can see them and consult 
with them! A. They do not.

Q. How much are they paid! A. They get $750 for the 
semester’s work.

Q. Dean Turner, getting back again to the question 
that I began to ask you in the examination in chief, on the 
basis of your testimony as to your Law School, what you 
know that your Law School has, and on the basis of Dean 
Brandis’ testimony, would you say that your faculty is 
equal to the faculty of the University of North Carolina!

Mr. McLendon: He has already answered that, 
your Honor.

The Court: I will let him answer.

A. In experience and reputation, I would say no. With 
respect to actual teaching ability, I can not answer it. I 
don’t know whether this is competent, but I have heard 
some of the students say that they like one man better 
than the other, and sometimes that other was from the Uni­
versity of North Carolina.

The Court: Have you ever seen a school where 
that wasn’t so, that students like one teacher maybe 
better than another!

The Witness: That is so.

Albert L. Turner—for Plaintiffs—Redirect



127

Q. (By Mr. Carter) What about the two libraries; 
would you say that the Library at the University of North 
Carolina—that (152) the Library at your school is equal 
to the Library at the University of North Carolina? A. 
I think it is not.

Q. Would you say that your classroom facilities are 
equal to those available at the University of North Carolina 
Law School? A. I really have no knowledge of that and 
the testimony hasn’t been clear enough on that for me to 
form an opinion of it.

Q. Do you consider a permanent brick building better 
than a temporary wooden, remodeled building? A. Yes, 
I would.

Q. Would you consider the student body that you have 
at your Law School equal to the student body at the Uni­
versity of North Carolina Law School? A. Certainly in 
numbers it is unequal. In what other respects would you 
have me compare them? A. Diversity of backgrounds, 
qualifications, etcetera. A. Well, in so far as being Negroes 
is a limiting factor, the diversity of their background would 
not be as great, Counsel is aware, of course, that there is 
some diversity even among Negroes themselves with re­
spect to background and points of view. Their training, 
we probably do not have as high a proportion of students 
with the A.B. degree before entering the (153) Law 
School as the University does, from what I understand 
about its program.

Q. Would you say that your expenditures of funds for 
operation are equal? A. On a per-pupil basis or an abso­
lute basis?

Q. The expenditure of funds.
Mr. McMullan: You mean the total expenditure?
Mr. Carter: Total expenditure.

A. The total expenditure is not equal.

Albert L. Turner—for Plaintiffs—Redirect



128

The Court: Per capita?
The Witness: Per capital, I expect it would be 

nearer being equal. Do you want that for the record, 
the per capita expenditures?

Mr. McMullan: Yes, we want it.
The Court: You gave us your expenditures as 

$41,520.
The Witness: That’s right; and we would have 

to divide 28 into that to get the per capita, and I 
haven’t done that arithmetic.

The Court: Did you give the answer?
The Witness: I did. I couldn’t answer. I simply 

gave the factors from which the answer could be 
derived.

Mr. Carter: We have no other questions.

(154) Recross examination by Mr. McMullan:

Q. Dean Turner, do you know any reason at all why a 
serious, well prepared law student could not attain at your 
institution an adequate legal education? A. None what­
ever.

The Court: I don’t know that this would have 
any particular bearing, but for my information I 
would be interested in knowing from you whether 
there is any other state in the Union that provides 
a law school for Negroes exclusively besides North 
Carolina; and, if so, what states.

The Witness: South Carolina, and Missouri has 
up to and including this year, and Texas and Louisi­
ana.

The Court: I know about the Texas school. Do 
you know when these other schools were started?

The Witness: The school in Missouri, I think,
was started in 1939; and this one here in North Caro-

Albert L. Turner—for Plaintiffs—Recross



129

lina, I think, was the second in point of time. The 
school in Louisiana was started in 1947 or ’47. The 
one in Texas—I will need help on that—1947; and 
the one in South Carolina about the same time, 1947.

The Court: Do you happen to know anything
about the size of those lawT schools in those other 
states you have enumerated!

(155) The "Witness: Not definitely. I think
the school in Missouri has had perhaps the largest 
attendance, but that, I believe, has been fewer than 
seventy-five students. The other schools, the one 
in South Carolina has had about between twenty 
and thirty, and I think the same has been true in 
Texas, with Louisiana having even less than that.

Q. (By Mr. McMullan) Dean, from the beginning up to 
now it seems there have been about eight of your students 
who have made application for admission to the Law School 
of the University of North Carolina. Had any of those 
students complained to you in any particular about the 
legal education they were getting at North Carolina Col­
lege! A. No, no specific complaints.

Mr. McMullan: That’s all.
*  #  #

(174) Tuesday, August 29, 1950—9:30 A.M.
(The hearing was resumed on Tuesday, August 

29, 1950, at 9 :30 a.m., pursuant to the adjournment 
taken on Monday, August 28th.)

The Court: All right, call your next witness for 
the plaintiffs.

Mr. Carter: If there is no objection from the 
defendants, I would like to offer this Bulletin of the 
North Carolina College Law School in evidence.

Albert L. Turner—for Plaintiffs—Recross



130

Mr. McLendon: That is all right.
(The Bulletin referred to was received in evidence 

and marked as Plaintiffs’ Exhibit 5.)
Mr. McMullan: We said yesterday we had no 

objection to its being offered.
The Court: I will let it be received now.
Mr. Carter: We would like to call Mr. Nabrit.

James M. Nabrit—for Plaintiffs—Direct

JAMES M. NABRIT, a witness called by the plaintiff's, 
being duly sworn, testified as follows:

Direct examination by Mr. Carter:

Q. Would you kindly state your name? (175) A. 
James M. Nabrit.

Q. What positions are you presently occupying, Mr. 
Nabrit? A. Professor of Law and Secretary of the Uni­
versity at Howard University, Washington, D. C.; also Act­
ing Director of Public Relations.

Q. Would you tell the Court, please, your educational 
background? A. I am a graduate of Morehouse College, 
Atlanta, Georgia, Class of 1923; a graduate of Northwest­
ern University School of Law, J.D. degree, 1927.

Q. Are you a member of the Order of the Coif. A. I
am.

Q. When did you become a member?
The Court: Did you say you were the Dean or a 

professor?
The Witness: Professor of Law.
The Court: At Howard University.
The Witness: That’s right.

Q. (By Mr. Carter) When did you become a member? 
A. I was elected to the Order of the Coif in my senior year



131

and inducted into the chapter at exercises at the school 
prior to commencement day.

The Court: Is that at Northwestern?
The Witness: That is at Northwestern Univer­

sity, in (176) Chicago.

Q. (By Mr. Carter) Were you present yesterday when 
the testimony of Dean Brandis was taken? A. I was 
present.

Q. You heard the testimony that membership in the 
Order of the Coif came after graduation from law school? 
A. Yes. I think the Dean probably meant it came at the 
end of your period in law school, because all of the per­
sons who are chosen in the Order of the Coif are chosen 
just before commencement.

Q. Do you hold any position in that organization at the 
present time? A. I do not; only membership.

The Court: Did you state how long you had
been a professor at Howard University?

The Witness: I have been a professor at Howard 
University since 1936.

Q. Mr. Nabrit, in your law-school days were you a mem­
ber of the Law Review? A. I was a member of the Law 
Review for two years.

Q. Are you a member of any Bar? A. I am a member 
of the Bar of the State of Texas and a member of the 
Supreme Court Bar of the United States.

Q. When did you become a member of the Bar of the 
State of (177) Texas? A. In 1929; the Supreme Court 
in 1938.

Q. Did you ever practice? A. I practiced seven years, 
from 1929 to 1936, in Houston, Texas.

Q. Are you a member of any legal organizations? A.

James M. Nabrit—for Plaintiffs—Direct



132

I am a member of the National Bar Association; I am 
formerly a member of the National Lawyers’ Guild.

Q. Are you a member of any other professional organi­
zations ? A. I am a member of the Association of American 
Professors, a member of the Association of Public Rela­
tions, a member of the Colleg’e Publicity Association.

Q. I understand you to say that you practiced law in 
Houston, Tesas, for seven years. What did you do after 
that? A. After that I went to Howard University as a 
teacher in the School of Law.

Q. Mr. Nabrit, what is your rank at Howard Univer­
sity? A. Full professor.

Q. You have taught since 1936. That means you have 
taught for a total of fourteen years? A. Correct.

Q. You stated that you were Secretary of the Univer­
sity. What is the nature of your duties in that position? 
A. In short, it is the duties that normally are performed 
(178) by the secretary of a corporation. I take the min­
utes of the Board, transmit all actions of the Board, keep 
the records and carry out such duties normally as the 
secretary of a corporation would.

Q. You stated, I believe, that you are also Acting Direc­
tor of Public Relations. Will you please state the nature 
of your duties in that position? A. It is the normal duties 
of a public relations director at a school. He handles the 
publicity, handles contacts with graduates, with the public, 
and in general attempts to improve the relations which 
exist on the campus and off the campus, with a view toward 
enhancing the reputation of the institution.

Q. Have you had any experience, Mr. Nabrit, in con­
sidering the educational program and building program of 
a university? A. Well, I have had considerable experience. 
Now, at this time, we are converting at Howard—we have 
seventeen million dollars which has been given to us for 
the construction of some new buildings, and I am serving

James M. Nabrit—for Plaintiffs—Direct



133

as chairman of tlie Coordinating Committee at the Univer­
sity in that program, and a part of our job has been to 
visit other schools and colleges in the various sections of 
the country so that we might profit by the experience of 
those schools and erect the best possible school with the 
money that has been given to us.

We have in that group of buildings an Engineering 
(179) building, Law building, Administration building, 
women’s dormitories, a Biology building, a Fine Arts 
building, which includes an auditorium and a little theatre, 
and men’s dormitories. So that at present we have visited 
the University of Michigan, the University of Chicago, 
the University of Pittsburgh, the University of Pennsyl­
vania, Columbia University; and two of the members of 
the Committee have visited some schools that I haven’t 
visited. 1 have visited those that I have mentioned.

The purpose of those visits has been to discuss with 
the people who planned and directed the building of those 
buildings in those various fields, and we have had some 
very beneficial experiences.

Q. In your duties, your service on that Committee, did 
you have occasion to look at law school plants and to look 
at them with a view to determining their efficiency for 
operation as law schools? A. Yes, we did. At the schools 
that I mentioned we looked and we found quite a variety 
in building. At least I was surprised to find so many 
different types of buildings at schools that are normally 
known as outstanding law schools.

Q. As a result of this experience, are you planning to 
erect a law school at Howard? A. Yes, we plan to erect a 
law school at Howard University. The architect is being 
chosen at the September meeting of the (180) Board. 
I think architects have already been chosen, but they are 
being approved by the Board at its September meeting. 
You know how schools operate. And this law school, I

James M. Nabrit—for Plaintiffs—Direct



134

might, say, will benefit from an experience which I have had 
since I have been here and have visited the two law schools 
involved in this case, because I found something at one 
of them I had not seen at any of those law schools that I 
mentioned.

Q. How much has been appropriated to the building 
of this new law school? A. One million nine hundred and 
fifty thousand dollars.

Q. Have you served on any committees on legal educa­
tion? A. Yes, I served on the Legal Committee of the 
National Bar Association.

Q. You mentioned your professional organizations and 
legal organizations. Have you had any connection with 
any other national organizations? A. Well, I am on the 
national legal staff of the N. A. A. C. P., for one.

Q. Have you published any legal articles? A. I have.
Q. Would you name where they were published? A. 

In the Juridical Law Journal, in the Journal of Negro 
Education.

Q. As a professor of law at Howard University, did 
you offer (181) courses in Civil Bights? A. Yes. I at 
present offer a course in Civil Bights.

Q. Who organized that course and when was it first 
offered? A. The first course in Civil Bights organized and 
taught in an American law school I organized in 1938 and 
I taught it from that time until 1950, this present. For 
about ten of those years no other law school taught that 
course, but I am happy to say that in the past three years 
the University of Chicago has started teaching it, Yale 
has started teaching it, and I think Columbia and New 
York University will join that group this coming fall.

Q. Have you organized any case books? A. Yes, I have 
my own syllabus and cases on Civil Bights.

Q. Have you visited the University of North Carolina 
School of Law? A. I have.

James M. Nabrit—for Plaintiffs—Direct



135

Q. Have you visited the North Carolina College School 
of Law? A. I have.

Q. Have you examined the curriculum of the Law School 
of the University of North Carolina? A. I have.

Q. And of the North Carolina College School of Law? 
A. I have.

Q. Were you present yesterday and did you hear the 
testimony (182) of the Dean of the Law School of the 
University of North Carolina? A. I did.

Q. Were you present and did you hear the testimony 
of the Dean of the North Carolina College Law School? 
A. I was present and I heard it.

Q. On the basis of your examination of the two schools, 
their curriculum, and the testimony of the two deans, would 
you tell us, Mr. Nabrit, whether the North Carolina College 
Law School compares favorably with the University of 
North Carolina School of Law in terms of the number of 
faculty? A. I would like to say first, so that the Court 
might know, that I went to these two schools when I ar­
rived here Saturday, and I had the Dean of the North 
Carolina College School of Law to take me around. Dean 
Brandis was not at the University, but Professor Aycock 
was there and he took me, so I had all of the facilities of 
the school put at my disposal. I went to every floor, all of 
the rooms except two offices at the University of North 
Carolina that were closed, professors’ offices. I went 
through the old building and the new annex all the way 
up to the top, each floor, all the rooms of that building.

Then I went to the North Carolina College of Law, and 
I went, accompanied by Dean Turner, through every room 
at the School of Law. So that at both places I had an 
opportunity—any questions, anything I couldn’t observe 
and get my answer, I got (183) from the representative 
of the school. So that, in answering the question, I would 
like to make it based upon my observations as well as upon

James M. Nabrit—for Plaintiffs—Direct



136

what I heard in court and also upon looking at the cata­
logues of the two schools.

Now, I would answer the question by saying that the 
faculties compare favorably, but they are not equal. I think 
that the difference in the faculties, in my opinion, lies in the 
experience and in the prestige which the faculty at the 
University of North Carolina has and which it has main­
tained nation-wide, not only in North Carolina but nation­
wide, for a long time. So that if you ask me if they com­
pare favorably, my answer is “ Yes.”

Q. Are they equal? A. No; for the reasons that I have 
given.

Q. Is a student at the North Carolina College given an 
equal opportunity to a student at the University of North 
Carolina in terms of the variety of courses offered and the 
opportunity for specialization? A. The first part of your 
question I would answer by saying “ No,”  in that there 
were a number of courses that were indicated in the testi­
mony yesterday that are not given at North Carolina Col­
lege that are given at the University of North Carolina. 
As to the second part of your question, I was not aware 
from anything that I found there was an opportunity for 
(184) specialization at the University of North Carolina.

Q. What about the size of the two student bodies? A. 
From the information brought out in the testimony, the 
University of North Carolina had approximately two hun­
dred and eighty students and the North Carolina College 
of Law had approximately twenty-eight students, so that 
from the standpoint of student body there is no approxi­
mation of equality.

Q. Did you examine the two law libraries? A. I walked 
through both libraries, and at the University of North 
Carolina Miss Elliott was kind enough to go with us and 
to answer any questions which we asked. The statement 
which I would make about the libraries would be based

James M. Nabrit—for Plaintiffs—Direct



137

■upon her testimony given in court, because I did not count 
and enumerate the volumes; I simply looked at them.

Q. Would you be able to express an opinion as to the 
comparison of the two libraries in terms of their admin­
istration and operation! A. Yes. One library is reported 
to have sixty-four thousand volumes; the other thirty thou­
sand. The thirty-thousand-volume library has one person, 
with two student assistants, part-time. The other one has 
a librarian and an assistant librarian, and then several 
regular assistants, and then some student assistants. Now 
I point that out because the use of a library depends upon 
the people who serve it; in other words, just your (185) 
books sitting around don’t mean much in a law school. You 
have to have somebody who can service those books and 
you have to have them in a place where they are accessible, 
and to do that you need a staff; and I would say that the 
staff at the Negro Law School is pathetically inadequate.

The Court: That the staff at the Negro college 
is what!

The Witness: Is inadequate, tragically so.
The Court: In arriving at that conclusion do you 

take into consideration the number of students who 
have occasion to use the library!

The Witness: I do, your Honor—and I think
that is a good question, because if you have students 
who are taking various courses, your first-year, sec­
ond-year and third-year students, other than for 
your duplications which were brought out yesterday, 
each student taking this particular course has to do 
that assignment, so that all that increased numbers 
increases is the need for more chairs and more tables 
and more of those sets that you use more frequently.

The Court: But I was thinking, in round num­
bers, according to the testimony of the Dean, there 
are approximately ten times as many law students

James M. Nabrit—for Plaintiffs—Direct



138

at the University of North Carolina as are in attend­
ance at North Carolina College, and, (186) as­
suming that each law student would use the library 
the same amount at each place, it occurred to me that 
possibly the help for ten times as. many students 
would have to be increased substantially to give 
enough service to each student.

What is your observation about that?
The Witness: My observation about that is that 

it doesn’t work that way.
The Court: Why not?

The Witness: Because you don’t increase your
staff in a library necessary by the number of students 
who use it. One of the best ways I have found is 
going to be in the new library building at the Uni­
versity of North Carolina. They are placing the 
person who is going to be in charge of that library 
just in a room which they are designating the peri­
odical room. Now any book that anybody wants 
that is a reserve book will be in that room, so that 
they can issue it. That one person will have charge 
of the whole library and at this one vantage point 
they can handle it so that the whole student body 
can come in and use everything around this library, 
around the walls, but anything they want from, the 
reserve section, this person would get it. That same 
thing would operate if they had ten students, had 
fifty or had five hundred.

The Court: But one charged with serving ten
wouldn’t have as much to do as one serving a hun­
dred?

(187) The Witness: Oh, I agree with that.
The Court: Proceed.

Q. (By Mr. Carter) Mr. Nabrit, in your examination of 
the libraries did you have occasion to make a comparison

James M. Nabrit—for Plaintiffs—Direct



139

as to the scope of the two libraries? A. The same observa­
tion I made before: I was guided by Miss Elliott’s testi­
mony. The one thing I did know, both from my visit and 
from her testimony, was that the University of North Caro­
lina has every periodical included in the Index to Legal 
Periodicals. Now that is an unusual collection, that means 
that they have over three hundred, and that is a wonderful 
teaching and research item. Now I say that because most 
of the small schools don’t have it. The Negro school has 
twenty-six Law Reviews. So that as to teaching and re­
search, that library, just taking that one factor, any teacher 
here would assure you that one of the primary instruments 
used by teachers is the Law Review; that one school has 
twenty-six, the other one has three hundred, the compari­
son is altogether inevitable from that aspect of the library. 
So that, with that explanation, I would say that that one 
factor alone makes the library at the University of North 
Carolina superior both as a teaching and a research medi­
um to that at the Negro college.

Q. With regard to the reading room as a source of study, 
the physical setup of the reading room as a source of study, 
how (188) would you compare the two schools? A. I 
would agree with Miss Elliott that the present situation at 
the University of North Carolina, their reading facilities 
are abominable; they are bad. They are worse than they 
are over there at the Negro school.

Q. Would you compare the two schools in terms of avail­
ability of rooms for study and for typing and for research? 
A. I am not certain about that last part on there, but I ex­
amined the rooms for the purpose of finding out study 
facilities and typing facilities, and I found at the Univer­
sity of North Carolina that they have around the Law 
School several surplus buildings from the last war and these 
buildings they have equipped with sets of books—-each one 
when I went in it had at least the North Carolina Reports 
and several others, as Miss Elliott testified to: thev have

James M. Nabrit—for Plaintiffs—Direct



140

desks, and the typewriters are not furnished by the school, 
but the typewriters of the students were still there. In 
some of the rooms the students were actually studying 
Saturday morning, because examinations were going on in 
some parts of the school.

Over in the law building itself there was a large room, 
and I think it was designated Law Students’ Association, 
or something of that sort. Anyway, it had these tables and 
facilities where you might use your typewriter and study.

So I would say, even though they are scattered, that
(189) the University of North Carolina had facilities 
available for students to study in groups and to use their 
typewriters.

Over at the North Carolina College there was no facil­
ity whatsoever for the students to study anywhere except 
at the tables in the reading room. In other words, when 
they got up from those tables they had to go home or stand 
up in the floor. There is no other place in the building, 
except in the center of the reading room, right in the mid­
dle of the stacks, right in the point against the wall of a 
raised platform, there was a bench and a typewriter, and 
the Dean informed me that the students who wished to type 
typed right there in the middle of the library, right above 
the students who were there reading at the table and right 
in front of the Dean’s office. That is the only facility for 
typing at the North Carolina College for Negroes.

So that, as to those facilities, I would say the Univer­
sity of North Carolina is far superior.

Q. Would you express an opinion as to their compari­
son with regard to the classrooms for students? A. Well, 
I would say that the classrooms at the University of North 
Carolina were beautiful. They were excellent law-school 
classrooms. They were large, with fluorescent lights, I be­
lieve; they had these benches that make excellent places
(190) for students to study, because law books are heavy

James M. Nabrit—for Plaintiffs—Direct



141

and large and in moving them around you need something 
like that. Now they had two of those. There was a third 
room which they could not use at that time because it is 
adjacent to this annex, and in the construction they have 
had to just give up that room, so that they are crowded so 
far as space is concerned, but those two rooms are very 
nice and large rooms. So I would say that, since this 
present third room is tied up in this construction, they will 
probably have some problems about rooms this fall. I am 
sure the Dean will work it out.

But over at the North Carolina College they have two 
rooms about the size of this area in here (indicating), if I 
could guess, about like this, and one room—well, it ’s larger 
than that jury box, but it is a small room, and it has these 
chairs with arms on them, very inadequate for legal study. 
This building is a wooden building, where the Negro school 
is and a one-story building which looks as if it ’s in pretty 
bad shape; and the building at the University of North 
Carolina is a three-story, I believe, brick building.

Q. With regard to office space for the faculty members ? 
A. The University of North Carolina had adequate office 
space—I will say this: had office space for the faculty, but 
some of those spaces have been taken up in this construction.
(191) If I could make it clear to you, the Law School is 
here (indicating), and the new building is to be put up 
against this wall. In doing that, in making the two so that 
you have access from one to the other, they have had to 
seal off this classroom and some of the professors’ offices 
and some other facilities, so that at this time I would say 
they probably are, in my opinion, being crowded for office 
space.

The North Carolina College for Negroes had two offices, 
facilities for two of the members of the faculty. I thought 
they were satisfactory. The third professor had his office 
in his classroom, where there were some books that students

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142

have to walk in and out and get, and, to me, I didn’t see 
how he did anything.

The Court: The law building at the University 
of North Carolina, do you recall in what direction 
the front of the building faces? Is it toward the 
west, generally?

The Witness: Well, I don’t know. I can explain
it this way—

The Court: Let’s assume that it does face toward 
the west, generally. As you enter the front of the 
building is the annex being added at the right wing 
of the building or the left wing, or behind the build­
ing?

The Witness: It is behind the building.
The Court: If the building is facing west—
(192) The Witness: If the building is facing 

west, I would say the annex is on the east side of the 
building. I don’t know whether it is facing west.

The Court: Does it attach about the center of
the building?

The Witness: That’s right; and it appeared to 
me, Your Honor, that this annex was almost as ex­
tensive as the building in front; that is, it appeared 
to be attached in the center but it was a large enough 
building to reach the end of the building, so that it is 
a very large addition.

Q. (By Mr. Carter) With the crowded conditions at 
the University of North Carolina in terms of office space 
for faculty members and the present conditions at North 
Carolina College, would you say that they are equal in that 
respect? A. I would say “ Yes.”

Q. What about the degrees that are offered; are the 
two schools equal in terms of degrees offered? A. No.

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143

The University of North Carolina gives a degree that the 
North Carolina does not give, so that the North Carolina 
College is not equal to the University of North Carolina in 
the matter of degrees.

Q. Mr. Nabrit, would you express an opinion as to the 
organization of the buildings for the efficient operation of 
a law school and would you compare the two schools in that 
regard! (193) A. Well, I would say that when you take 
it from that question the inequality of the Negro school is 
highlighted, because it is not organized for a law school. 
This is a barn-like structure, one story; as you walk in the 
door you walk right into the reading room, the stacks. On 
one side is the Dean’s office and lavatory, and then this big- 
platform with the typewriter. On the other side is another 
lavatory and office or something, and then two tables for 
the students, and on this side of this end are some stacks, 
and then there is a little balcony that’s been put in there, 
and some stacks are there. The Librarian’s office is on that 
left side.

In the Dean’s office and the Librarian’s office are some 
of the law books and treatises to be used by the faculty 
and students. You go on through this same barn-like 
structure and on the other side are classrooms; and then 
you are out of the building. That is all there is to it.

The University of North Carolina, of course, is or­
ganized for a law school. The arrangement for the pro­
fessors, I stated and want to repeat this, that at the present 
time their building is disorganized, but what I am saying 
is to the arrangement, bearing in mind that at this moment 
there is some disorganization. It doesn’t affect what I am 
saying, because the building itself is arranged for a law 
school, and you don’t have (194) the type of arrange­
ment where everybody comes right into your study room 
and your library where you are trying to do your research 
and everything else, if he is coming in there at all. The

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144

whole arrangement of the University of North Carolina is 
most advantageous.

Q. Would you compare the two schools in terms of their 
facilities for research! A. Well, I said the thing that im­
pressed me most about the research was the fact of this 
wonderful collection of Law Reviews at the University of 
North Carolina. Another thing that I would mention was 
the fact that I believe Miss Elliott stated she had thirty- 
four sets of State Reports, complete, and that, of course, 
is an excellent research medium, too; and there was no in­
dication of anywhere near that number, in my opinion, at 
the Negro college.

The Court: Right there in that connection,
wouldn’t that become unnecessary duplication unless 
you did have a larger number of students ?

The Witness: No. If I understand you, you
mean the State Reports or the Law Reviews ?

The Court: I thought you said thirty-four sets 
of State Reports.

The Witness: I should have said thirty-four
States’ Reports. What I mean was that she has 
thirty-four of the forty- (195) eight states.

The Court: And how many at the North Caro­
lina College?

The Witness: As I said, no testimony was given. 
I looked and I didn’t see, as I recall, anything but 
North Carolina, but I wouldn’t testify that they 
don’t have one or two. I would testify they don’t 
have anything like thirty-four. They don’t have 
room for them.

Q. (By Mr. Carter) Mr. Nabrit, in terms of the oppor­
tunities for the students to get election to Law Reviews, 
is there any equality between the schools in that regard?

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145

A. No. I think that was stated by the witnesses, that the 
Negro law school is not equal to the University of North 
Carolina in that it does not afford that opportunity for Law 
Review training, which is one of the best ways to assist a 
student in his training. It is a sought-after thing, and they 
just don’t have it. North Carolina has a distinguished 
Law Review; its reputation is outstanding throughout the 
United States.

Q. In terms of opportunities of the students for mem­
bership in the Order of the Coif, are the two schools equal? 
A. No. The Negro school does not have it, and with respect 
to that the University of North Carolina School of Law is 
far superior; there is no equality, no basis even for a com­
parison.

Q. What benefit, if any, would that be to the students, 
in your opinion? (196) A. Well, I think—I am some­
thing like the Dean; I happen to be a member—I think it’s 
a nice reward; after you have studied, you succeed. I be­
lieve students do like to get it. It doesn’t determine your 
training—it’s something that, if you merit it, in the judg­
ment of the faculty, you are chosen to it, but I think it ’s 
one of those intangibles of a school which enhances the 
reputation of the school, which encourages the atmosphere 
of scholarship and gives you some prestige among your 
associates.

Q. Mr. Nabrit, would you say that a basis of comparison 
would be the fact that the University of North Carolina 
offers a Summer School course and the Negro Law School 
does not, or don’t you consider that important? A. I think 
it is decisive. If a student is entering law school, a normal 
nine-months’ program, either on a semester or a quarterly 
basis, he would finish his law work in three years; and under 
the catalogue and the arrangement at North Carolina Col­
lege he must spend at least three years in order to get his 
degree. But where you have a summer school in connec­

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146

tion with your law school, it is possible for a person to 
accelerate their work or certainly to get extra work—even 
if they don’t graduate earlier they can take extra courses— 
and if they are unfortunate enough to have a little trouble 
with a subject and get a bad mark they can retrieve it dur­
ing the summer.

Now none of that is available to the student at the
(197) Negro college of law; no provision is made for 
summer-school work at all. In that respect the University 
of North Carolina is quite superior.

Q. Would you compare the two schools as to reputa­
tion? A. I would say that in the local community I don’t 
know, but I would say that outside of North Carolina the 
Negro college of law is comparatively unknown; it has no 
reputation. So that, whereas the University of North 
Carolina, wTith all the persons who have been affiliated with 
it—and now I am talking about the University and not the 
Law School—with the University and the reputation of the 
University, and then the Law School itself, with the dis­
tinguished people who are constantly showing up on the 
national scene from the Law School, this Law School at the 
University of North Carolina is just known everywhere, 
with the Law Review. So that, as to reputation, it has an 
outstanding national reputation without any question.

As to the Neg-ro Law School, however adequate it may 
be for those students, it just doesn’t have any reputation 
outside the state.

The Court: What about the North Carolina
College for Negroes?

The Witness: The North Carolina College for 
Negroes is known outside of the state.

The Court: Isn’t its reputation favorable?
(198) The Witness: It ’s nowhere near the

reputation that the University of North Carolina

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1 4 7

has. There isn’t a single Negro school, your Honor, 
in the South anywhere that is as good as any South­
ern university.

The Court: I am asking now about the reputa­
tion. When you were speaking a minute ago of the 
reputation of North Carolina you didn’t confine it 
to the Law School, but you included the reputation 
of the University as such?

The Witness: That’s right.
The Court: The academic institution ?
The Witness: That’s right.
The Court: Now, in making your comparison,

you did not include the North Carolina College as 
such, and I am just asking you if the North Carolina 
College doesn’t enjoy a good reputation throughout 
the United States.

The Witness: I want to answer you that, your 
Honor.

The Court: 1 am not asking you for any foolish 
purpose. I was under the impression Hr. Shepard 
was an outstanding man and had an institution which 
enjoyed a favorable reputation. If that is not true 
I want to know it.

The Witness: Oh, no, but I want to make this 
explanation: North Carolina College is not a uni­
versity. What I am trying to say is that you don’t 
have a university for Negroes in the South. You 
don’t have dentistry, don’t have pharmacy, don’t 
have engineering. So that if you take it as a college
(199) of liberal arts, North Carolina College has a 
fine reputation all over the country, but you can’t put 
it up with a university because it is not a university. 
That is what I was trying to say.

The Court: The University of North Carolina 
has a school of pharmacy, doesn’t it?

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148

The Witness: I think so.
The Court : And a school of law!
The Witness: That’s right.
The Court: They have recently established, or

are in the process of establishing, a school of medi­
cine!

The Witness: That’s right.
The Court: What extra schools does an institu­

tion have to put on to become a university!
The Witness: The thing* that actually counts, as 

I see it, as a university, at the University of North 
Carolina, the University of North Carolina gives a 
doctorate degree; that is, you can take your Ph.D. 
in various fields. There isn’t a single Negro school 
in the United States, including the one where I work, 
where they have developed several basic courses, 
cutting across the liberal arts curriculum, to sup­
port a Ph.D. degree. North Carolina College falls 
in ;that same category. They just give a master’s 
degree, I think, in three fields. The University of 
North Carolina gives a doctorate degree in so many
(200) fields—Sociology, for instance—that they 
have run away with the South with it. So that is 
what I mean by saying—

The Court: All right.

Q. (By Mr. Carter) Taking all of these comparisons into 
consideration, as a sum total, would you say that North 
Carolina College Law School is equal to the Law School 
of the University of North Carolina? A. In my opinion 
it is nowhere near equal. The University of North Caro­
lina School of Law is a far superior school to the Negro 
School of Law at North Carolina College.

Q. It was brought out yesterday in the testimony that 
the University was offering a separate course in Damages

James M. Nabrit—for Plaintiffs—Direct



149

which was not offered at the North Carolina College. 
Would you say that the law of Damages is covered by the 
law that you learn in Contracts and Torts! A. When I 
was in law school I took Damages as a separate course. 
I haven’t seen Damages taught now in any schools for 
many years. I don’t think you need a course in Damages— 
that is just my opinion. I think you get Damages in con­
nection with your Torts, your Contracts. I teach Damages 
myself, so that I would answer you by saying I don’t think 
you need a course in Damages, but if a school wants to have 
it, it ’s all right.

The Court: You can’t study Contracts without 
having Damages, can you?

(201) The Witness: You certainly can’t, your 
Honor.

The Court: Or Negligence?
The Witness: That’s right.
Mr. Carter: That’s all.

Cross examination by Mr. Umstead:

Q. Doctor, how many years did you say you had been 
at Howard University? A. Fourteen years.

Q. From what source does Howard University receive 
its support? A. It receives around sixty percent of its sup­
port from the Federal Government.

Q. By Congressional appropriation? A. That’s correct.
Q. How many law students do you have there now? A. 

We had 148 last year, and it will be something like that this 
year.

Q. And for that 148 students I understand you to say 
you had a million nine hundred and fifty thousand dollars 
available for a law building? A. That’s correct—but the 
law building will not be for 148. Our number of students 
is limited by the size of the fa- (202) cilities that we

James M. Nabrit—for Plaintiffs—-Cross



150

have. Our law school now is in the basement and the top 
floor of one end of the Library of the University, so that we 
can’t take any more.

Q. And you are in bad shape for those you do take ? A. 
That’s correct.

Q. And so is the University of North Carolina? A. As 
of the section I talked about, it is.

Q. Did you see this temporary, war-time building that 
had been erected and used for several years as part of the 
Law School? A. I certainly did.

Q. That is as bad as anything you have got at Howard, 
isn’t it? A. I think in some respects it is worse.

Q. About the worst you have seen anywhere, isn’t it? 
A. Except the North Carolina College for Negroes.

Q. I show you a picture which purports to be a picture 
of the Law School at the North Carolina College for 
Negroes. Does that, in your judgment, from wThat you saw 
Saturday, correctly represent the exterior, the front ap­
proach to the building? A. I think it does.

Q. This is another view of the same building. Does that 
reasonably correctly represent what you saw there? A. 
No. I think if I would get this view I would have to (203) 
get down on the ground and slant my sig’ht up. It ’s one of 
those photographic—this one is.

Q. Aren’t they substantially the same except one shows 
more elevation than the other? Don’t they all show the 
same windows, the same front wall, the same pillars and 
same porch? A. Yes—but, you see, this is a part of my 
work. We do this kind of pictures, slant them like this, 
get down on the ground—this is exactly like it (referring 
to another photograph).

Q. I won’t ask you about that it all. I think it is the 
best picture, anyway.

Now you say that that looks worse than the temporary 
building at Chapel Hill? A. No, that wasn’t your ques­

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151

tion. You asked me about those buildings out there in the 
back.

Q. I understood you to say that they were worse than 
anything you had seen except this building down here. I 
ask you now, Doctor, if you are meaning to say to this 
Court that this building, of which I have just shown you a 
picture, your choice of pictures, if you please, is a worse 
looking building or worse building than the temporary 
shacks over at Chapel Hill which you saw there Saturday. 
A. It certainly is not, but you must remember your ques­
tion was not as to that. I wasn’t answering that question.

(204) Q. I understood you to say you were on the staff 
of the N.A.A.C.P.? A. That’s correct.

Q. What position do you hold on the staff? A. I am 
not a paid member, just a member of the legal staff, and 
what I do on the legal staff is prepare memoranda when 
they wish them and references to some legal point they 
have.

Q. Who is the chief counsel for that organization? A. 
Mr. Marshall sitting here..

Q. I understood you to say that you had practiced law 
in Texas for a good while? A. That’s right.

Q. Were you involved in the Sweatt case? A. I was. 
I was one of the attorneys, and I tried it in the lower courts 
and assisted with it all the way up to and in the Supreme 
Court.

Q. Were you employed there by the N.A.A.C.P.? A. 
No, sir. I have not received any money for practicing law 
since 1933. My services were free.

Q. You had to get in the case some way. Who em­
ployed you ? A. In that sense, I was assisting Mr. Marshall.

Q. You came down Saturday and went over to Chapel 
Hill. Did you also go to the North Carolina College on 
Saturday? A. That’s right. Saturday morning I went to

James M. Nabrit—for Plaintiffs—Cross



152

the University (205) of North Carolina, and Saturday 
afternoon I went to the North Carolina College for Negroes.

Q. How long did yon spent at Chapel Hill? A. I ar­
rived there at approximately 10:35 and I stayed there until 
after the noon hour; whatever the hour is that they were 
closing, we left about that time.

Q. Well, do you know about what time you left—twelve 
o ’clock or twelve-thirty? A. I will say it was about twelve- 
thirty. I am sure we weren’t there over two hours.

Q. How long were you down at the Negro college? A. 
About the same time, maybe a little longer, as we sat 
around and talked.

Q. That constitutes your physical and personal investi­
gation of the two plants? A. That’s correct.

Q. The information you secured over there and hearing 
the testimony here in the court-room yesterday, is that the 
basis for your testimony today? A. That’s correct.

Q. Now I am not quite clear on one point you discussed, 
with reference to Law Reviews and periodicals. Is there 
an index of all the main Law Reviews and law periodicals 
published in the country? (206) A. That’s correct.

Q. Was that the index you were referring to when you 
discussed this matter? A. That’s correct.

Q. Did I understand you to say that they had all of 
the Law Reviews and periodicals of every kind, every­
where, listed in the Index, at Chapel Hill? A. So they 
stated.

Q. Were you present when Miss Elliott testified? A. 
I was.

Q. Did she not say that there were some of them they 
did not have? A. No, sir, I don’t think so.

Q. How many Law Reviews are there in the country 
of any standing? A. Well, I would say probably three 
hundred.

Q. First-class Law Reviews? A. That’s right.

James M. Nabrit—for Plaintiffs—Cross



153

Q. How many law schools are there in the United 
States, accredited law schools ? A. I think there are about 
eighty-eight in the Association.

Q. How many law schools are there in the country 
accredited by the American Bar Association? A. I don’t 
know about the American Bar Association. I know (207) 
about the Association of American Law Schools.

Q. Have you any idea? A. There must be hundreds of 
them.

Q. Then there are a lot of law schools, on our state­
ment, which have Law Reviews which are not accredited 
institutions and do not belong to the Association of Amer­
ican Law Schools? A. You see, all of the periodicals that 
are in the Index to Legal Periodicals are not limited to what 
we call the traditional Law Review.

Q. I understand that. Right now I am talking about 
just Law Reviews. A. I don’t know how many Reviews 
there are.

Q. You did not mean to say there were three hundred 
Law Reviews, as such? A. No; 1 was talking about these 
publications that were indexed.

Q. Three hundred in the Index, which are not limited to 
Law Reviews? A. Right.

Q. Can you give me any idea how many Law Reviews 
are published by law schools in the country? A. No, I don’t 
know. I would say, if you want me to guess, wholly a 
guess, I would say I imagine around forty, something like 
that, maybe fifty.

(208) Did you hear Dr. Turner testify yesterday that 
they had twenty-six Law Reviews at his institution? A. 
That’s right, he so testified.

Q. If he has twenty-six and there are not but forty 
published, that is a pretty good percent of them, isn’t it? 
A. I would answer, if you would permit me, by saying that 
if you are teaching* or doing some research, if there is an

James M. Nabrit—for Plaintiffs—Cross



154

article you want to get in a Law Review and you don’t 
have that, it doesn’t make any difference about the per­
centage of them, you just don’t have what you need for 
your purpose. So twenty-six would not be the equal of a 
complete set of Law Reviews.

Q. There is probably not a law library in the United 
States that has every published law book, periodical and 
digest, is there? A. Not that first part.

Q. Then in any library a man is going to sometimes 
want something he can’t find, isn’t he, if he is doing re­
search? A. Exactly.

Q. No matter how complete you try to have it, that will 
still be true ? A. Right.

Q. That is so at the law library of the University of 
North Carolina? A. Right.

(209) Q. And it is so at North Carolina College? A. 
It is more so, because many of the things they don’t have 
are also over at the University of North Carolina, these 
Law Reviews, for example.

Q. How do you know any student down there has 
wanted something they didn’t have? A. The Dean testi­
fied the teachers were doing a good job of teaching, so I 
know they must have sent them for some things that aren’t 
there.

Q. A law student at Howard University, when he wants 
something that isn’t there, gets it somewhere else? A. 
Yes; all of us go down to the Congressional Library, stu­
dents and teachers, and get it.

Q. Every college has to do that, doesn’t it? A. That’s 
correct.

Q. On the question of books, the Librarian wasn’t 
present when you went to the North Carolina College Law 
School, was he? A. No; the Dean was.

Q. The Law Librarian was away on vacation? A. 
That’s correct.

James M. Nabrit—for Plaintiffs—Cross



155

Q. You did not have, then, the assistance of the Libra­
rian in giving you detailed information about the Library, 
as you did at Chapel Hill, did you? A. No; I had the Dean 
instead of the Librarian.

(210) Q. Of course the Dean is not a librarian? A. 
But he is a good man.

Q. There doesn’t seem to be any doubt about that, even 
among you folks? A. No.

Q. Now you heard him testify that his Librarian had a 
degree in Library Science ? A. Right.

Q. Do you happen to know the Librarian there? A. I 
do not.

Q. It is in evidence that at the North Carolina College 
Library there is an all-time librarian, trained in that realm, 
and two part-time assistants. It is in evidence that at 
Chapel Hill, as I recall it, there is a librarian and one all- 
time assistant. I understood you to say earlier in your 
testimony that there were a number of all-time assistants? 
A. No.

Q, No, I didn’t think you intended that. A. No. I said 
there was one librarian, one full-time assistant and several 
part-time assistants, not including the student assistants.

Q. Now for the twenty-eight students at the North Caro­
lina College there is a full-time librarian and two part-time. 
For two hundred and eighty students at Chapel Hill there 
are two (211) all-time librarians, and I believe Miss 
Elliott testified that the largest number of part-time she had 
at any one time was eight.

Q. Now, after all, the main element in effective and effi­
cient library service is that there be someone in the library 
familiar with the books and who knows where they are and 
who can find them when wanted? A. That’s correct.

Q. Assuming that you have a first-class librarian at the 
North Carolina College Law Library, with twenty-eight 
students to serve, and if that, librarian knows where his

James M. Nabrit—for Plaintiffs—Cross



156

books are, knows what they are and knows how to find 
them, then certainly one person can serve twenty-eight 
people, can’t they1? A. I will answer you that I found at 
the Library at North Carolina College for Negroes that 
the books had never been catalogued; only about one-third 
of those thirty thousand books have ever been catalogued, 
even have a number on them. I would say that that is 
partly due to this question you are asking me, so I will 
say it is obvious one person wasn’t sufficient, because he 
can’t even get the books catalogued.

Q. How many books did you see down there? A. The 
Dean and I took books out at random through the stacks 
and found the sections where they hadn’t been catalogued.

C212) Q. How did you make that check? A. We 
checked by sections. For example, these were United 
States Reports. We would pick out one volume to see if 
this particular set had been catalogued.

Q. Isn’t it true at Chapel Hill and every other library? 
A. N o; they have their books catalogued and have a num­
ber, and their card catalogue.

Q. Don’t they do it by sections and by sets? A. Oh, 
yes.

Q. Are you prepared to say now you know the system 
used by the Librarian at the Library down here at the 
Negro college? A. I am prepared to say that I know the 
lack of system.

Q;. Do you know the system? A. No. I can only tell 
you what we found. We found some of the books had been 
catalogued, some had their numbers, but that was very 
small, about a third of those shelves. All I am saying is 
that he either needs some assistance so that he can com­
plete that work, or there is something wrong with the work.

Q. You did not, of course, see the Librarian, and there­
fore you do not know what the Librarian knows about the 
books in that Library or how that Librarian handles them?

James M. Nabrit—for Plaintiffs—Cross



157

A. N o; I took the word of the Dean, who is in charge of the 
Librarian.

(213) Q. I am asking you now what you know. There­
fore you do not know whether, if you went down there this 
morning and asked the Librarian at the desk for any law 
book in the library, whether that Librarian would know 
where it was or not! A. I think he would. I think the 
Dean would.

Q. If the Librarian knows where the book is and can 
find it, that’s what you want? A. Yes; but you weren’t 
asking me that. You were asking me about the organiza­
tion and I was trying to get at one phase of the organiza­
tion. I think the Dean and the students could do it.

Q. Then the Dean or teacher would have no difficulty in 
getting service on any book in that Library that one of the 
students wanted? A. If the Dean was there and the 
Librarian there.

Q. That is what I prefaced it by. I don’t think a man 
would walk up to the stacks and get a book out. A. I 
didn’t mean the stacks. I meant those reserve books.

Q. How much of the Library did you see at Chapel 
Hill? A. We started at the basement and went everywhere 
except where books had been locked up and stored away. 
Miss Elliott said at least two-thirds of her books had been 
stored away. I went from, that basement up to the top floor.

Q. She told you, and you accepted the fact, that two- 
thirds (214) of her Library was not in use? A. Yes. 
She so testified in court.

Q. Do you know how long that has been true ? A. I am 
trying to see what she said. I think it was during this past 
year.

Q. All the law books at the North Carolina College are 
at the same place and are available? A. Yes; and they are 
out there easily accessible, except the reserve books.

Q. I understood you to discuss, Doctor—how many

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158

classrooms does the North Carolina College Law School 
have in its present building? A. The University or the 
Negro school?

Q. North Carolina College. A. They have three, as I 
recall.

Q. How large are they? A. I don’t have the dimen­
sions . I think they are about the size of this section in here 
(indicating).

Q. Do you mean to over yonder at the wall or the gate ? 
A. No.

Q. Where did you mean? A. I would say about the 
part where the gentleman has his arm on the rail, going 
across there, going back to the Judge, something like that.

(215) Q. Would you say about 30 by 30 feet? A. Iam  
simply telling you my impression, from there to there. If 
that is that number of feet, then I say that, but I am saying 
from here to there, because I walked around in there.

Q. I don’t believe the record can understand that. A. 
If you translate it into a satisfactory number of feet—

Q. Was it about 30 by 30? A. I don’t know.
Q. If you don’t know how much a foot is, how am I 

going to find out? A. The reason I am saying that, I don’t 
want to give some figures that are too much. It didn’t ap­
pear to me larger than that area. I am willing to take any 
person who is a good calculator as to what that is.

Q. Did you ever measure any distance or step anything? 
A. Oh, yes.

Q. Do you know how long you step, on an average? A. 
I don’t know. I would guess that distance of that room. 
I would guess it could have been thirty, but I am simply 
saying I wasn’t trying to get the feet, I was just trying 
to get the size of the room, and I thought it was a room 
large enough for those students.

Q. What I am trying to do is get something in the rec­
ord (216) about the approximate size of those rooms

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159

you have testified about. You say that you have been 
all over the country examining- law buildings? A. That’s 
correct.

Q. And your building fund comes to over a million nine 
hundred thousand dollars? A. Correct.

Q. And I submit you must have some idea of the size 
of that classroom. A. I do, and I will give you. the size. 
The size of that room was what seemed to me to be ade­
quate for around twenty students, if they have proper 
benches and—

Q. That is almost twice as much as any class at North 
Carolina College? A. It is large enough for any class at 
North Carolina College, and I so testified.

Q. Well lighted and comfortable in every way? A. 
Except, as I said, the University has better space for the 
use of their books.

Q. I hand you here a picture, which I think is already 
in evidence, No. 5, which purports to be one of the class­
rooms. Do you recall seeing that classroom? A. That’s 
right. It is adequate for those students.

(217) Q. That classroom is all right, isn’t it? A. No.
Q. What is wrong with it? A. This type of chair is not 

the type of chair that any law school will get. They will 
take it if it ’s all they can get, but no law school wants 
students to try to study with them. You have got a chair 
with just an arm on it, like those, whereas what you have 
with your law student, he puts his books on there, his 
selected reading on there, his Williston on there and his 
other things. He can’t put it all on here.

The Court: What should he have?
The Witness: He should have a bench and long 

board and students sitting behind it, or put in the 
form of a desk in front of them. What we are 
planning to do that I have seen at some of these law 
schools, we are going to run a long board, which is

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160

going to really be a table, across, and then the stu­
dent’s seat is going to be behind that, which will give 
them all the space they need for books.

Q. (By Mr. Umstead) How many is the largest number 
of persons in any law class at Howard University? A. 
Around fifty-five.

Q. If you do what you just testified you would do, how 
big a room would it take for that many students? A. We 
are not planning—we don’t plan to keep all of them (218) 
in one room. The largest class we have is fifty-five.

Q. If you had fifty-five students and were going to give 
every one of them the kind of equipment you just testified 
about, how large a classroom would it take to put them in? 
A. I imagine we could put them in a classroom about twice 
this large.

Q. Fifty-five students in a space twice what you said 
was adequate for twenty, that’s got benches in it instead 
of chairs? A. Yes; but I found out when you put those 
benches in you actually conserve space.

Q. Do you know of any law school anywhere that uses 
chairs like this except North Carolina College? A. Oh, 
yes, I found several of them.

Q. Then there is a difference of opinion about what 
ought to be used? A. No, no difference of opinion; differ­
ence of budget.

Q. How did you find out that all of them couldn’t have 
gotten benches? A. Well, they all complained about that. 
I took for granted—

Q. I am not asking you what you took for granted. I 
ask you, if you will, to leave out what you took for granted 
and stick to things you know. A. I would say that the 
best equipment for it is not a chair with that arm. That’s 
the worst possible classroom (219) equipment for law.

James M. Nabrit—for Plaintiffs—Cross



161

Q. That is your opinion about that? A. Well, you asked 
me my opinion.

The Court: May I ask a question? Are those 
chairs wooden-bottom or split-bottom chairs?

The Witness: Wooden-bottom.

Q. (By Mr. Umstead) Doctor, you saw the library. Will 
you look at this, which is Picture No. 4 that has been intro­
duced here, and say whether or not that represents a part 
of the Library that you saw down here at the Negro Law 
School? A. It does; it is a good view.

Q. Does that represent some of the reading tables you 
saw in the Library (exhibiting photograph)? A. That’s 
correct.

The Court: What number did you hand him?
Mr. Umstead: The last one is No. 3.

Q. Is that another view of part of the Library, showing 
the reading tables, with ample room? A. That’s right.

Q. There is room enough in the reading room of the 
Library at the North Carolina College to accommodate all 
the students at one time if they want to go there? A. Yes.

Q. How many students would the reading-room facili­
ties (220) over at Chapel Hill Law School accommodate 
at one time? A. I doubt if the main reading room would 
accommodate all of them at once.

Q. About how many do you thing could reasonably get 
in there at one time ? A. I would venture about a hundred, 
a hundred and ten. That’s an opinion.

Q. You have testified about the present law building 
down there at the North Carolina College for Negroes. I 
should like to show you Picture No. 6, which purports to be 
a picture of the new law school building which Dr. Turner,

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162

I believe, testified they hope to get in in about eighty days. 
Did you see that building! A. I did not.

Q. Weren’t you told anything about it? A. Until I got 
in the court I hadn’t been told about this.

Q. Then you have testified as to the present facilities 
being constructed at Chapel Hill, and you do not know any­
thing about the facilities now being constructed at the North 
Carolina- College for Negroes? A. No, I didn’t say that. 
I said I didn’t know at that time and I hadn’t been there, 
but after yesterday’s testimony I did make some inquiries 
about it.

Q. Doctor, do you know anything about reading plans 
for buildings? (221) A. That’s right.

Q. Well, I congratulate you. Will you look at that, now, 
examine that? That purports to be a plan for the law 
building at the North Carolina College which Dean Turner 
hopes to get in in the next eighty days. A. Let me correct 
that testimony. I have seen this. Either the Dean showed 
it to me—I have seen this.

Q. Are you, then, familiar with what the appointments 
and facilities will be in that new building? A. I am.

Q. You have examined it in detail? A. I have, and I 
am prepared to give you an opinion.

Q. Well, let’s have it. A. My opinion is that this ar­
rangement as set out here would be a good arrangement for 
a law school.

Q. And it is in a first-class brick building? A. I haven’t 
seen the building.

Q. You looked at that picture? A. I just wanted to let 
you know I haven’t seen the building. This is a good layout 
here.

Q. Doctor, how many law schools have you visited, did 
you say, in connection with your preparations to erect your 
building? A. Well, I named a number of schools.

James M. Nabrit—for Plaintiffs—Cross



163

Q. Just roughly? (222) A. I imagine around five or 
six. I named the schools we had visited in connection with 
our building program, but I didn’t visit each one in con­
nection with the law school.

Q. All of them were different in some particulars? A. 
Exactly; every one.

Q. There isn’t any such thing as an equal school with 
another school, is there? A. Oh, yes.

Q. You think you have got a good law school at Howard, 
don’t you? A. Yes.

Q. Yet you are crowded and do not have enough room? 
A. Correct.

Q. Everywhere you go you find differences in law 
schools, in colleges, academic and otherwise? A. Correct.

Q. And you find them here between these two? A. 
That’s correct.

Q. You wmuld find them between the University of 
North Carolina and Howard? A. That’s correct.

Q. You would find them between Wake Forest and 
Yale? A. That’s correct.

Q. You would find them between Duke University and 
Columbia? (223) A. That’s correct.

Q. Or any other two that you undertook to examine 
in any particular? A. That’s correct.

Q, Now you have just said that, in your judgment, the 
facilities which would be made available by this building, 
a drawing of which you have examined, would be adequate 
for a law school? A. That’s correct.

Q. I understand you to say that the teaching staff at 
North Carolina College would compare favorably with the 
teaching staff at Chapel Hill? A. Yes.

Q. I understood you to say, however, that the fact 
more courses were given over at Chapel Hill made a dif­
ference in the available work to students at the two insti­

James M. Nabrit—for Plaintiffs-—Cross



164

tutions? A. In answering that question, I said that, so 
far as specialization is concerned, I didn’t know of any 
at either school.

Q. It ’s been testified here already there wasn’t any 
opportunity for specialization in law at either school. A. 
But that was asked me, and I wanted to be sure I stated 
then and state now that I found no evidence of speciali­
zation.

Q. You also stated, for example, that the course on 
Damages (224) given at Chapel Hill, in your opinion, 
wasn’t exactly worth giving, hut was covered by Torts 
and Contracts? A. No, I didn’t exactly say that. All I 
said was that in many other schools they incorporate it in 
other courses.

Q. And you also said you didn’t think it was neces­
sary? A. No. I said I wouldn’t want us to institute a 
course in Damages at Howard, but wouldn’t want to inter­
fere with the prerogative of the University of North 
Carolina.

Q. If that course is given, and you think it is covered 
in Contracts and Torts, do you know how many other 
courses are given over there that may be covered in the 
courses of North Carolina College for Negroes? A. Yes, 
I saw one or two—Business Associations, which is simply 
a new name for old courses, but there are some changes 
in the course done when you streamline two or three 
courses and put them into one. You do lose some—in my 
judgment, you don’t lose any material benefits, but, as I 
said, some schools conduct it that way; others would take 
Partnerships, Corporations, Agencies and treat them sepa­
rately.

Now this Debtors’ Estates about which the discussion 
took place is another one of those courses. We break those 
up into Bankruptcy and—

James M. Nabrit—for Plaintiffs—Cross



Q. And so it goes, and law schools differ in what they 
include in a course? (225) A. Yes, sir. However, there 
is no way to find that particular thing covered at North 
Carolina College for Negroes. That isn’t over there.

Q. On the Summer School business, I believe you heard 
Dr. Turner testify, or I think he testified, he had never 
had a request from a law student for a Summer School 
course? A. I didn’t hear him say that. I take it for 
granted that it is true.

Q. There’s been a lot said about this degree business, 
the LL.B and J.D. Doctor, you are a little prejudiced in 
favor of J.D. because you were fortunate enough to make 
grades good enough to entitle you to such a degree, weren’t 
you? A. I would say I am not prejudiced to it. I would 
just as soon see a school where they only gave LL.B.

Q. It makes no difference, does it? A. It makes a 
difference whether a school gives it, in comparing it with 
the one that doesn’t give it. I have to say that this one 
that does not give it is not equal to the one that gives 
it. I am not prejudiced about whether they should give 
it; I have no opinion one way or another.

Q. Aren’t there just as good law schools that do not 
give the J.D. degree as there are that give it? A. Pre­
cisely. That is why I say I have no prejudice. All I am 
saying is, looking at the two catalogues, talking to people 
(226) at the two schools, one giving it, in addition, and 
the other not, they are not equal.

Q. And that inequality winds up meaning nothing? A. 
Oh, it does mean something. The fact that the Law 
School faculty at the University of North Carolina thinks 
enough of it to put it as an offering of their degree, an 
outstanding law school wouldn’t think of doing it if it 
didn’t mean something.

Q. Suppose the Law School at the University of Ten­

James M. Nabrit—for Plaintiffs—Cross



166

nessee didn’t think so and didn’t give it, would yon say 
it would make any difference between the two law schools? 
A. I guess people who teach in law schools get some pecu­
liar notions. We think that if the faculty votes something 
it has some merit.

Q. All right, I think that is a good place to leave the 
J.D.

Doctor, all the comparisons you made a few moments 
ago between facilities of the two law schools under con­
sideration were based upon the present building at the 
North Carolina Negro Law School and the future build­
ing at Chapel Hill, weren’t they? A. I tried to make it 
clear that I made no comparison either between North 
Carolina College for Negroes and the University of North 
Carolina at all with respect to the new building at the 
University of North Carolina. I merely said (227) that 
I saw it and went on through it and that it was going up. 
I have never tried to tell the Court or anybody what was 
in it, what was going to be in it, because I did not make 
the comparison of the new building at the University of 
North Carolina.

Q. I understood you to wind up saying to the Court, 
in response to a question the Judge asked you, that the 
present facilities at Chapel Hill were abominable? A. I 
said that at Chapel Hill, under their present conditions, 
the use of their law7 books was pathetically abominable.

Q. Wouldn’t you apply that same statement to their 
whole law-school setup at the present time? A. No, sir.

Q. With the temporary outside buildings and two hun­
dred and eighty students, and equipped to handle a hun­
dred and fifty? A. No, they are not. They are not the 
type the University of North Carolina should have, but 
if you go out and look at them, although they are these 
surplus properties, they are good places for students to 
study. As a matter of fact, I suppose some students are

James M. Nabrit—for Plaintiffs—Cross



167

going to prefer them to some of the quarters in the new 
building.

Q. Doctor, did I understand you to say that at Chapel 
Hill they had thirty-four sets of Reports from that many 
states? A. I said I understood that from the testimony 
of Miss (228) Elliott yesterday.

Q. Now, as a matter of fact, I am bringing this to 
your attention, because I know you wouldn’t wish to un­
intentionally mix up the two institutions. Isn’t it a fact 
that Dr. Turner testified that they had the State Reports 
from thirty-four states, up to the National Reporter 
System? A. Well, he may have, but I was attempting to 
recall Miss Elliott’s testimony, in which she stated that 
she had these intermediate appellate Reports and that 
they had thirty-four sets. Now if the record is examined 
and the reporter, I think you will find she so testified. 
That is what I was referring to.

Q. I f it should be a fact that Dean Turner also testified 
that the North Carolina College Negro Law School Library 
has the reports of thirty-four states, then what you said 
about that collection would be applicable to his Library, 
just as you applied it to Chapel Hill, wouldn’t it? A. 
Precisely.

Q. Doctor, what is your operating budget at Howard 
for your Law School? A. Our operating budget, not being 
the Dean, I would guess that budget to be about ninety- 
three thousand dollars. That is just a guess. I could 
get that information for you if you wanted it in the record.

Q. I thought you would know that, as Public Rela­
tions Of- (229) ficer of Howard University. A. No. 
You see, that is one of the things we don’t put in our 
public relations.

Q. You have to depend on your public relations to get 
it? A. That’s right.

James M. Nabrit—for Plaintiffs—Cross



168

Q. Because it takes public relations, where you have 
need for sixty percent of the money, to get it? A. That’s 
correct.

Q. That’s the reason I thought you would know how 
much it was. You say you have about how much? A. I 
would guess around ninety to somewhere around a hun­
dred thousand dollars.

Q. And you said you had a hundred and fifty students! 
A. 148.

Q. Do you know what the appropriation is for the 
maintenance and operation of the Law School at the Uni­
versity of North Carolina, including the Library and all 
of the expense in connection with the Law School? A. I 
heard those figures given yesterday for both schools. I 
didn’t pay much attention to them, because you notice I 
didn’t use them in my comparison of the two schools, 
because I didn’t recall them. I really just didn’t think 
that was a basis I would use. If you give them to me I 
will be glad to answer the question.

(230) Q. The appropriation of funds available for the 
operation of a law school, that is important, isn’t it? A. 
That’s right.

Q. Of course you couldn’t get along without it? A. 
Right.

Q. And the amount and adequacy of the appropriation 
is also very important, isn’t it? A. That’s correct.

Q. Doctor, did you know Dr. Shepard? A. I certainly 
did.

Q. How long have you been knowing him? A. I have 
been knowing him since I was a boy.

Q. What was his national reputation as an educator and 
college president? A. Pine reputation.

Q. How long have you known of the North Carolina Col­
lege for Negroes? A. Oh, all my life.

James M. Nabrit—for Plaintiffs—Cross



169

Q. I believe you have already stated to the Court that 
it has a fine reputation throughout the country ? A. Right; 
it has.

Q. Do you know Dr. Elder, the present President of 
that institution? A. I have known him since we were in 
school.

(231) Q. I ask you if he doesn’t have a nationally 
splendid reputatoin as an educator and educational leader? 
A. He does.

Q. How long have you known Dean Turner, of the Law 
School? A. A good long time.

Q. I ask you if Dean Turner hasn’t got an outstanding 
reputation as a law professor, teacher of law and dean of 
the Law School? A. I would bring this up. He has an 
outstanding reputation as a scholar and as a man. We 
teach law. I don’t know about when you say outstanding 
reputation of teaching.

Q. His chosen field is law, isn’t it? A. Yes.
Q. And if he has an outstanding reputation as a scholar, 

that includes law? A. I am talking about law, that he has 
an outstanding reputation as a scholar in law and an out­
standing reputation as a man. You are asking me if he has 
a national reputation as a teacher of law, and I don’t want 
you to get me wrong there, because I don’t see how he 
could get it where he is teaching.

Q. You say he has a national reputation as a scholar in 
the field of law? A. That’s correct.

Q. Dr. Shepard got his North Carolina College, didn’t 
he? (232) A. Some of the things Dr. Shepard got and 
did I still don’t understand, because he was amazing.

Q. I will agree with you about that, but he got it down 
there; that’s where his background of his educational work 
was and remained? A. You understand I have said he has 
a good reputation.

Q. Do you mean to leave the impression a man can’t get

James M. Nabrit—for Plaintiffs—Cross



170

a national reputation at a small college? A. No, that isn’t 
what I meant. You were talking about the Law School; 
now you are switching to the College, and you are saying to 
me why is it you couldn’t get it at a small college. I was 
talking about the Law School. You not only can get it at 
a small college, but some of the best reputations in the 
country were made at the small college, and North Carolina 
has produced many people who have obtained great reputa­
tions from them.

Q. Coming back to the Law School, you did not mean 
to say that a man can’t get a national reputation at a small 
law college! A. I mean to say that at a school that is not 
accredited, that has been operating under the circumstances 
this Negro school has been operating under, not only can 
they not get a national reputation, but they have the burden 
of sustaining whatever reputation they have in other areas.

Q. Do you know whether or not professors have devel­
oped (233) state and national reputations at small law 
schools? A. Yes, all over the United States.

The Court: You said, if I recall it, that you got 
your law degree in 1927 at Northwestern ?

The Witness: Yes, sir.
The Court: I was two years your senior when I 

got my degree. I was anxious to know whether or 
not, by the time you came along, the use of type­
writers was general by law students.

The Witness: No; they were beginning to, but 
they hadn’t gotten them like they do now.

The Court: I was the only one who happened
to use a typewriter at the college, the law school, 
where I attended, and I made part of my living ex­
penses by typing for other students, and I wondered 
whether by 1927 typewriting was a general practice 
among law students.

James M. Nabrit—for Plaintiffs—Cross



James M. Nabrit—for Plaintiffs—Cross

The Witness: It was not.
The Court: Are you prepared to say what it is in 

Howard now? Are there very many of your law 
students who do their typing?

The Witness: I would say in each class there 
are half a dozen or ten good typists, and they do the 
typing for the rest under some arrangements.

The Court: You have no personal knowledge
whether any of those students at North Carolina 
College do typing?

(234) The Witness: No, I don’t.
The Court: And you don’t know about over at 

the University of North Carolina?
The Witness: No, I don’t. I saw a large number 

of typewriters, but still don’t know anything about 
it.

The Court: Are you prepared to say now, as a 
present-day teacher, a student is better off who types 
in his law work than one who does it by hand?

The Witness: Well, I would say I believe the 
student who types has an advantage over the one 
who doesn’t.

The Court: About the progress, speed, or what?
The Witness: Yes, sir. For instance, a great 

many of the courses in law school now require the 
writing and submission of briefs and memorandums 
and other things, and I think that some of the large 
number of students who type and submit those in 
typed form are creating a sort of snowball, and after 
awhile they sort of take it for granted and the first 
thing you know it ’s required that they be typed, so 
they have no choice.

The Court: When it comes to the influence on 
memory, what is your opinion as to the effectiveness



172

of increasing your power to remember what you 
wrote if you write it by hand instead of typing it?

The Witness: I thought it helped me as a stu­
dent. I wasn’t as good as you were, but I had this 
class of typing, and (235) when I took my notes 
home I went home and retyped them, and I think 
it helped me. I can’t speak for others. I think for 
my own progress it was very helpful.

The Court: Both as a student, and then prac­
ticing law, and also on the Bench, I have found that 
by making notes of what takes place in the court­
room, whether as a trial lawyer or as a judge, that I 
can remember much better the testimony when I 
make notes of it than I can when I don’t, because 
there my hand has to execute what my mind dictates, 
and as that is done I recall in my mind what I am 
doing and find it is much easier to remember the 
testimony of witnesses by making notes, but a lot of 
judges never make notes. I find, personally, that I 
can remember it much better if I make notes than if 
I don’t; and as a student I found that by carrying a 
notebook to class and making notes of the points the 
teacher made I could remember much better my 
lessons that way than I could if I didn’t make my 
notes, and I have found that in writing by hand it 
enables me much better to remember what takes 
place than on the typewriter. One is mechanical and 
the other calls for a personal effort.

The Witness: You see, in the modern way that 
students study, it ’s practically required of them that 
they make notes

The Court: Not on a typewriter?
The Witness: No.
(236) The Court: Do you know of any law

school in the United States which requires law stu­
dents to make notes on typewriters?

James M. Nabrit—for Plaintiffs—Gross



James M. Nabrit—for Plaintiffs—Gross

The Witness: No. What I was going to say is 
that all of these students have those notebooks which 
they make by hand, so they have this process which 
fixes it in their minds, and all I was saying was that 
if, afterward, they typed it, that helps to fix it in 
mind.

The Court: Well, that part of it is not indispen- 
sabel in the learning of the law, is it?

The Witness: Oh, I would think we put many 
things on there that are not indispensable. All I was 
pointing out is that one school had places for stu­
dents to do that, whereas the other didn’t.

The Court: There is another thing I am thinking 
about, The placing of facilities before persons and 
the utilization of them are quite different things; 
isn’t that true ?

The Witness: That’s correct.
The Court: And even though one place might 

have greater facilities, when you take into considera­
tion the crowded condition that prevailed there, 
would it necessarily follow that a place which had 
better facilities, but overcrowded, would be able to 
afford better advantages to a student than a place 
that wasn’t crowded?

The Witness: Well, my own choice would be to 
go where (237) the best was, even though I was 
kind of crowded.

The Court: You demonstrated that, I think, by 
going to a very fine university, Northwestern, but 
all students don’t have an opportunity to go to 
schools of that sort, Probably, if I could, I might 
have g’one to Harvard or Yale, but I couldn’t, I did 
well to get to Wake Forest. I am quite sure I would 
have had many advantages at Harvard or Yale that 
I didn’t have at Wake Forest, but I don’t know



174

whether I would have done any more at one place 
than another. Take the membership of the Supreme 
Court of the United States today: We have one 
member who is a distinguished former Dean of the 
Harvard Law School, but the Chief Justice comes 
from a little school about the size of our law schools 
here in North Carolina, down in Kentucky. So the 
size of the place, of itself, doesn’t necessarily deter­
mine the advantages that are available, does it?

The Witness: No; and I was trying to keep that 
clearly before the Court, that in my comparison of 
these two schools I was trying to take all of those 
factors into account. If you had just the one factor 
that one is large and the other somewhat small, it 
doesn’t make that difference, but it is a combina­
tion of all those things that highlight this.

The Court: Another thing that is interesting to 
me and (238) which I would like to have your 
reaction on, in the Opinion of the Supreme Court 
in the Sweatt case one of the elements mentioned 
there as a criterion for determining equality was 
the prestige and background of an institution and 
the size of its alumni. As a practicing member of 
that Court, maybe I shouldn’t ask you this, but is 
it your view—not talking as a lawyer but as an 
educator—is it your view that that is a criterion 
which would be controlling in determining the ques­
tion of equality of opportunity?

The Witness: My opinion is that, limiting it to 
law schools—and I am limiting it to law schools be­
cause I think the Court was—I think the Court was 
setting that down as the final criterion. After every­
thing else was looked at, the Court says: Here are 
some things that are the difference between an ex­
cellent and outstanding school and not so good a

James M. Nabrit—for Plaintiffs—Cross



school: the reputation and prestige of the faculty, 
the alumni in that kind of sense I would say that Mr. 
Vinson was making that controlling*.

The Court: I know that in all of these realms 
there is conjecture and you will find as many notions 
probably as you will find individuals. I recall that 
in the final lecture the Dean of our law school gave 
to the graduating class, his advice to students was 
to go to some town where they were not known to 
locate. The reason he assigned for that was in the 
(239) home community where you were reared they 
will still think of you as you, grew up, won’t recog­
nize you as a lawyer, but g*o to a new place and you 
will be accepted immediately as a lawyer. That was 
about the only advice he ever gave me that I didn’t 
take. He was sincere; he believed in that. It turned 
out fortunate for me to go back to my county.

I want to bring that up just to point out that 
experts can have expert opinions and be misled, 
there is no man who ever lived in the State of North 
Carolina who taught more lawyers than Dean Gulley. 
I think everybody will agree to that. He was a man 
who could quote anything out of a law book, tell you 
what you wanted to know about it, Blackstone from 
beginning to end. You see, you can work out gen­
eral standards, but there are exceptions that don’t 
work out.

Another thing about the prestige, as I think back 
over my past, I practiced law for approximately 
twenty years and have been a judge twenty-three 
years now, but I can’t recall of a single instance I 
was ever employed by anybody because of any in­
stitution I attended, and I can’t recall a single in­
stance where the prestige cut any part. Now I have 
heard, and I suppose it ’s true, that in Washington

James M. Nabrit—for Plaintiffs—Cross



176

a lot of people get law jobs up there on account of 
the prestige of the institution they attended, and I 
have heard it said that Harvard occupied (240) a 
little more favorable position in that regard. On the 
other hand, I have heard that some of the judges 
have virtually abandoned Harvard law students as 
their law clerks.

So is it not, after all, largely a matter of indi­
vidual opinion about that prestige thing, except when 
it might come to the question of getting a job?

The Witness: Well, I think this, your Honor:
I think the American law school has undergone the 
same type of development, maybe more slowly, that 
the medical profession has undergone. If you will 
recall, in the early days all law was studied in law­
yers’ offices, and we had some great lawyers and 
great judges, so that that is a method which can 
produce outstanding people.

The Court: Perhaps it largely is due to the fact 
that those students who attended the one-teacher 
school, private school, happened to be individuals of 
outstanding character and outstanding ability. I re­
call reading in some book somewhere—I believe it 
was Elbert Hubbard’s Little Tracks to the Homes 
of the Great—that when Patrick Henry applied for 
his license to practice law before Thomas Jefferson, 
Jefferson asked him how long* he had studied law and 
he said six weeks; whereupon Jefferson found him 
very proficient and granted him his license. But 
Patrick Henry would have been a great man wher­
ever he was thrown—

(241) The Witness: That is my point, that the 
system we have got now is to take care of the people 
who are not as great as those people and to give 
to the general run of students the best training.

James M. Nabrit—for Plaintiffs—Cross



177

In other words, they are not capable, as a whole, 
and lawyers don’t have the time—

The Court: I don’t want to be misunderstood as 
implying or intimating that the obligation of the 
State to offer equal facilities to its taxpayers and 
citizens is lessened by any of these things I am say­
ing. I am just talking about some matters of prac­
tical common sense.

That leads me to one other point, and that is that 
this Law School at the North Carolina College, it is 
in the record here that it has been approved by the 
American Bar Association as a Class A law school. 
That is the classification which the American Bar 
Association extends to any college that meets its 
minimum requirement, isn’t it?

The Witness: Right.
The Court: Do you know of any valid reason 

why this law school shouldn’t be accepted by the 
Association of American Law Schools? Applica­
tion has been filed for it, and do you know any rea­
son why it should not be granted?

The Witness: No—and it probably would be.
The Court: In other words, there isn’t anything 

you have knowledge of concerning the Law School 
that makes it not (242) an efficient, Class-A law 
school, is there?

The Witness: There is not.
The Court: In size, in historical background and 

in alumni, it is nowhere in comparison to the Uni­
versity of North Carolina?

The Witness: That is correct.
The Court: It never has been and never can be, 

can it?
The Witness: That’s correct,

James M. Nabrit—for Plaintiffs—Cross



178

The Court: The only way it could ever be equal 
would be to change the policy and the student body?

The Witness: That’s correct.
The Court: I notice in reading some of the

pleadings that the Legislature of North Carolina es­
tablished this college back in the twenties, I believe 
it was, and authorized it to establish a school of law 
and of pharmacy and other things, as well as a school 
of liberal arts.

Is it your opinion that the Legislature of North 
Carolina should continue appropriating money to en­
large the facilities and bring them up to a greater 
standard of proficiency and enlarge the institution, 
or is it your opinion that the law school should be 
abandoned there?

The Witness: Well, that is a hard question for 
an outsider to answer, but I will give you my opin­
ion. My opinion is that it would be much better if 
the faculty and students were (243) integrated 
over at the University of North Carolina and spend 
the State’s money to do it over there. There are 
only twenty-eight of them and, if they met the re­
quirements, just take them over there. I think it 
would be better all around for the law school.

The Court: What effect do you think it would 
have on North Carolina College?

The Witness: It wouldn’t have any, wouldn’t
bother them at all.

The Court: Don’t you think it would reduce
the area of its activities and prevent its proper 
growth and development as an institution?

The Witness: I don’t think so.
The Court: Let’s put it the other way, then.

Don’t you think the Law School at the University

James M. Nabrit—for Plaintiffs—Cross



of North Carolina has added to its prestige and 
growth?

The Witness: I certainly do.
The Court: Why would it not be advantageous 

—I am asking you as an educator—why would it 
not be advantageous to the North Carolina College 
here, increasing its usefulness?

The Witness: It would be; but I think this, as 
an educator and one who has worked as an educator 
in the South, I think the same amount of money to 
be expended on North Carolina College for the Law 
School, if the Law School were combined (244) 
with the Law School of the University of North 
Carolina, and the same amount of money go to 
build up its undergraduate degrees and depart­
ments and to give more masters’ degrees and 
broaden the base so it could finally give the doc­
tor’s degree, I would think that would be the finest 
thing to happen to North Carolina College.

The Court: Someone has said something about 
the practice that would be expected to be followed 
by a North Carolina lawyer of your race. Do you 
have any comments to make as to that?

The Witness: I would certainly like to, your
Honor. In the first place, I enjoyed Judge Varser 
very much and I was intrigued by his statement 
that you would not get any white clients—■

The Court: He didn’t say they wouldn’t get
any.

The Witness: No, he limited it to a small per­
cent, but he appeared to say this would grow out 
of your being in class at the law school with your 
white classmates. If I am correct in that, I never 
thought in terms of a student in law class getting 
future business from his classmates. What I think

James M. Nabrit—for Plaintiffs—Cross



James M. Nabrit—for Plaintiffs—Cross

about that whole thing is this: If your are in the 
Law School of the University of North Carolina— 
a Negro, rather, is in that class—ten years from 
now, fifteen years from now, twenty years from 
now, the classmates that he has there are going 
to (245) occupy good positions in the State of 
North Carolina, and he will have known them, will 
have gone to school with them. They will be prose­
cutors, judges, bankers, all these other people. So 
that, as a lawyer, he will have a wealth of contacts 
with people who will know whether he has any 
qualities of praiseworthiness or ability as a lawyer 
or anything else; and what I am saying is that the 
question of whether or not he would get some white 
clients is not related to the question of whether 
he is a student in the Law School. I think in the 
Law School it ’s perfectly simple they ought to go 
to school together, because all your practice is be­
fore the courts. It isn’t like the doctor going and 
getting in a room and shut up. When you go into 
court you have to associate with lawyers and judges.

The Court: I think you may not have quite
understood Judge Varser as I think I understood 
him. He is a very practical type of man and a 
man of very extensive experience and has partici­
pated very actively in the educational development 
of the state, not just as a legislator but in private 
institutions, and he is a man of very wide experience 
and extensive practice in the law; and I think at 
least what I understood him to say was that his 
opinion was that virtually all of the employment 
that a Negro lawyer would receive, or had re­
ceived, as far as he had observed, was from mem­
bers of his race, and that since that is true, if you 
accept that as a premise, it (246) . would seem



181

that if the prestige would cut any figure and the 
alumni cut any figure, you would have more alumni 
from one of the Negro colleges, or if he studied 
law at home he would have more people there 
he would know, and would have the advantage of 
attending an institution of his own where members 
of his own race are educated.

The Witness: I thought he said that, and that 
is what I was addressing myself to. My attempt 
to comment on that was to say that, so far as the 
alumni of the Law School are concerned, it appears 
to me that the greater advantage of studying law, 
say, at the University of North Carolina would far 
outweigh any question of the few alumni relations 
he might establish over at North Carolina College. 
I think over a period of time it would be the finest 
thing that a Negro lawyer in North Carolina could 
have.

The Court: Now that brings up another ques­
tion there. We have a number of very able Negro 
lawyers in the Middle District of North Carolina, 
and I have been in contact with some in Eastern 
North Carolina, but haven’t held court so much 
there. Now during the period that I have been on 
the Bench here, I don’t recall a single instance 
that any of those lawyers—and it has to be conceded 
they are equal in ability with lawyers of the other 
race—I can’t recall a single instance where one 
has appeared for a white client in Federal (247) 
Court. Of course I have no way of knowing what 
their practice or income is in the office, because a 
lot of good lawyers never come into the court-room. 
I take it that is probably what Judge Varser had 
in mind, what he had seen in the court-room. It 
doesn’t follow at all that a Negro lawyer shouldn’t

James M. Nabrit—for Plaintiffs—Gross



1 8 2

appear for a white client, if the white client wants 
him, but most of the people study law with an 
idea of making a living from it, and if they are 
going to do it they have got to make that living 
from clients, and if you make it from clients you 
have got to consider, it seems to me, where these 
clients are potentially available.

You said you practiced law down in Texas for 
how many years!

The Witness: Seven years.
The Court: Generally speaking, were your clients 

from your race, or what percentage would you say—
The Witness: I would say that most of my

clients were members of my race; and I would go 
further and say I think the same thing would be 
true of most of the Negro lawyers practicing in 
the South. I don’t think that the same almost 
overwhelming percentage will obtain forever. I 
just say that it is that way now.

The Court: Of course we have no way of know­
ing what the future is going to bring. You, of 
course, aie entitled to (248) your view as to which 
is the best method, and I have asked you for it 
because you have had a good deal of experience 
in the field of education. I think there is one thing 
here—these are very important matters in this state, 
and I take it all intelligent and broad-minded people 
of both races should be intensely interested in pur­
suing the course that would be the best for all.

This might be off the record here—
(There followed a discussion off the record.)
The Court: I was asking you what you thought 

about the future of North Carolina College here, 
whether it would be better in the long span of

James M. Ndbrit—for Plaintiffs—Cross



183

years for the college to be enlarged so as to include 
a school of pharmacy, so as to give better oppor­
tunities than now. That is a matter about which 
I can’t do anything; neither can you. It is up to 
the Legislature of North Carolina, the amount of 
money they appropriate for these different things, 
but I was just wondering whether, from the stand­
point now of the college and of the race for whose 
benefit it was actually established, what the effect 
of the destruction of the law school would be.

The Witness: I think probably, your Honor,
that all the educators in North Carolina would agree 
with me, including the people at North Carolina, 
that for that college—

The Court: I am not saying that they should be 
left there.

The Witness: Oh, no—that they will agree with 
this statement I am going to make: that for the best 
interests of the college—and the college doesn’t have 
any choice—it would be better if the law school were 
identified with the University and those students 
transferrred over there and the money to be spent 
at North Carolina College for the law school be 
given to the school to strengthen its undergraduate 
and graduate departments; and I believe you would 
find educators over the state agreeing absolutely that 
would be better because of the service of the school 
and the larger number of people which would im­
prove the service, than trying to incorporate the law 
school now where this one is.

The Court: Would you care to hazard an opinion 
as to the result if the Court should ultimately decide 
that Negroes should be admitted to the University 
of North Carolina Law School? Is it your opinion 
that if the Negro students had the opportunity to go

James M. Nabrit—for Plaintiffs—Cross



184

they would all go there and not go to North Caro­
lina College?

The Witness: If they kept the Law School at 
North Carolina College and also admitted them at 
the University, in my opinion you would have as 
many at North Carolina College as (250) would 
go to the University, and it would be due to some fac­
tors I would have to point out to you. Some would 
he distance; some would he lack of ability to make 
the requirements, either after they got in or before 
they got in; another would be that some of them 
would just prefer to go on to North Carolina College. 
So that is what would happen.

The Court: Well, we will take about a ten-min­
utes’ recess now.

(Thereupon a brief recess was taken.)
The Court: Proceed with the cross examination.

Q. (By Mr. Umstead) Doctor, you stated that you ap­
peared as counsel in the Sweat! case. How many other cases 
of this character have you appeared in as an attorney? 
A. I would say in the last twenty years I must have ap­
peared in fifty of them.

Q. How many have you appeared in as an expert wit­
ness? A. None.

Q. Until this one? A. This is the first one.
Q. Prior to the questions asked you a few moments ago 

by the Court, had you ever heard of Dean Gulley? A. No, 
I hadn’t.

Q. Had you ever heard of Mr. S. P. Mordecai? A. Not 
until the testimony yesterday.

(251) Q. Do you know anything about the Law School 
at Wake Forest that Dean Gulley taught or the Law School 
at old Trinity that Mr. Mordecai taught? A. It appears

James M. Nabrit— for Plaintiffs— Cross



185

Malcolm Pitman Sharp—for Plaintiffs—Direct

to me that I have a recollection of both of the schools. I 
have no recollection of the two men that you spoke of.

Q. I don’t suppose you would have any of the schools, 
if you hadn’t heard of the two men. A. Well, I am not too 
familiar with North Carolina.

Q. Do you know whether or not either school or either 
man had any national reputation! A. I am sure, from what 
was said yesterday, they must have had. I simply don’t 
know the men.

Q. How many members of your faculty do you have at 
the Law School at Howard University? A. We have seven 
full-time members and three part-time members, ten in all.

Mr. Umstead: That’s all. Thank you, sir.
(Witness excused.)

MALCOLM PITMAN SHARP, called as a witness by 
the plaintiffs, being duly sworn, testified as follows:

(252) Direct examination by Mr. Marshall:

Q. Will you give your full name and address, Mr. 
Sharp ? A. Malcolm Pitman Sharp, 5638 Kenwood Avenue, 
Chicago.

Q. Where are you presently employed? A. At the Uni­
versity of Chicago Law School.

Q. Before we get into that, you have heard all of the 
testimony in this case? A. Yes, I have.

Q. Including the testimony of the last witness? A. Yes. 
Q. Let me ask you first do you hold any official title in 

the National Association for the Advancement of Colored 
People. A. No.

Q. Have you ever been employed, with or without fee, 
on any of its cases as a lawyer? A. No.



Q. You have testified as an expert witness in other 
cases involving the refusal to admit qualified Negroes to 
state law schools; is that correct? A. Yes, sir.

Q. Which cases were they? A. The Sweatt case and the 
Sipuel case, in Oklahoma.

Q. That was on the retrial of the Sipuel case? (253) 
A. Yes.

Q. Getting back to yourself, Dr. Sharp, will you trace 
briefly your educational background and working record? 
A. Born in Madison, Wisconsin; went to public school 
there; graduated from Amherst College in 1918; first teach­
ing job with the Navy, teaching flying in the first world 
war—■

The Court: Graduated from what college?
The Witness: Amherst College.
The Court: What degree ?
The Witness: B.A.

Q. (By Mr. Marshall) Then in the first war you taught 
flying? A. In the Navy.

Q. That was in Florida, was it not? A. It wras; Miami. 
I passed out the war years, taught another year at the 
University of Wisconsin, where I taught Economics and 
took an LL.B. in law; M.A. at Harvard in 1923; was in 
practice for a couple of years in New York after graduat­
ing; taught at the University of Iowa in 1925-26; back on 
a research fellowship at Harvard in 1926-27 and took the 
S.J.D. degree there; taught at the University of Wisconsin 
from 1927 to 1933; the University of Chicago from 1933 
to the present.

Q. Have you had any practical experience other than 
law teaching in recent years? (254) A. During the years 
at Wisconsin I served in various advisory capacities for the 
State government. During the early days of the New Deal 
I served in various capacities, particularly in connection

Malcolm Pitman Sharp—for Plaintiffs—Direct



187

with the Steel Code of the N.R.A., and served in various 
agencies of the Federal Government during the war.

Q. The University of Chicago is a member school of the 
Association of American Law Schools, is it not! A. It is.

Q. Since you have been there have you served on any 
of the committees of that Association? A. I was before 
the war chairman of the Curriculum Committee for a while.

Q. What was the purpose of that committee? A. To 
consider changes to be made in the curricula of' the law 
schools. I have served on one or two minor committees 
since then.

Q. Mr. Sharp, from your experience and whatever re­
search you have done on the matter, what would you say 
is the purpose of law-school training ; in other words, what 
should be the purpose, the ultimate purpose, of the institu­
tion in giving the training? A. There are, of course, a good 
many ways to put various answers to that question. The 
most obvious purpose is to train people to practice law. 
That, itself, has many aspects. A (255) practitioner is 
apt to take a leading part in public affairs, has from the 
beginning of our history, and one of the qualifications of a 
leading practitioner is readiness to take a leading part in 
public affairs.

Q. Do you consider the training for public service an 
item of legal education? A. I do.

Q. And, restricting your testimony to that phase of the 
purpose of legal training, what effect is there in having 
the training offered in an institution where only one race 
of students is permitted to attend? A. What is the disad­
vantage?

Q. Yes, to public service. A. I believe it was very well 
put by the last witness. Law practice, public service, leads 
one into associations in all sections of the community. 
Early associations and establishing confidence of fellow- 
citizens, fellow-members of his profession at an early stage

Malcolm Pitman Sharp—for Plaintiffs—Direct



1 8 8

in his education, no one can prove it, but it seems to me 
obvious he is more likely to be called on to take a leading- 
part in public affairs, administrative agencies, the legisla­
ture, a leading part in all the activities, local, state and 
national of the community. It is not indispensable; we 
know leaders who have gone to schools to which only (256) 
one race, only the Negro race, was admitted. Such leaders 
do appear, as I have seen leaders, people like Judge Hastie, 
take a leading part as a public civil servant in the judiciary; 
an example that comes readily to mind, the late Mr. Charles 
Houston, who was in law school with me, who was on the 
Law Review and was taking a leading part, among other 
things, in working out problems of security in the rail 
unions. A student from our own school, Mr. Robert Ming, 
who is presently a colleague, with a brilliant record in our 
school, now spending a large part of his time as Assistant 
Attorney General, in fact general counsel for the Public 
Service Commission in our state. He helped one utility 
subject to the control of the Commission to get out a new 
issue, in the face of the recent break in the market. It has 
been an innovation in public utility operations, so far as 
I know.

Mr. Truman Gibson, another Negro alumnus of our 
school, was on the President’s Conference on Universal 
Military Training.

It seems to me that not only have those people been 
helped toward their positions by the fact that they had 
associations with all the elements in the community, but 
that when they came to discharge their duties in those 
various capacities it is of the utmost importance that they 
should think as members of the total community and not as 
members of a segregated racial (257) group. The most 
obvious case is perhaps the case of Mr. Gibson in the Con­
ference on Military Training. This distinguished group 
recommended military training some years ago, and I take

Malcolm Pitman Sharp—for Plaintiffs—Direct



Malcolm Pitman Sharp—for Plaintiffs—Direct

it that anyone can see that all the members of that com­
mittee should speak as members of the national community, 
not as members of individual groups.

Q. I think you made it clear, but, in order that there be 
no question about it, each of those men came from mixed 
schools? A. The two first came from Harvard, high stand­
ing men at Harvard; the two other persons came from my 
own Law School, high standing men there.

Q. Mr. Sharp, in considering the comparative values of 
law schools—and you, of course, understand that in this 
case that is the question we have been discussing—what 
consideration do you give to the institution to which the 
law school is attached in evaluating the two schools? A. 
It seems to me a matter of very considerable importance. 
We at Chicago think we get a great advantage from our 
relationship to a great university. Our Taxation man in 
our Law School has the advantage of consultation, or has 
had until lately, with Mr. Blough(?), who has gone to be 
one of the President’s advisors.

The Court: How is the University of Chicago 
financed?

The Witness: By endowment, sir.
(258) The Court: Is it supported in any way by 

the State or Federal Governments?
The Witness: No, sir, apart from exemption 

from taxation.
The Court: It is a private institution?
The Witness: A private institution.
The Court: What is the size of it ; what student 

body do you have ?
The Witness: I really don’t know; I think around 

eight thousand, something like that.
The Court: How many are there in your Law 

School ?



190

The Witness: I think it ’s about two hundred and 
fifty-odd now.

The Court: What percentage of them are mem­
bers of the Negro race?

The Witness: 1 haven’t counted since I went
down to the Texas case. I think there were thirteen 
at the time. We have eight or ten, run that way. 
We don’t keep account of them.

The Court: You don’t know how many Negroes 
are in the Law School up there?

The Witness: No, sir, at the moment I don’t.
The Court: Well, do you know approximately?
The Witness: We had, as I say, two or three 

years ago when I last counted, a dozen. I should 
guess it was something like that. We don’t keep 
track of them separately.

(259) The Court: I understand that, but do you 
teach there?

The Witness: Yes, sir.
The Court: You don’t blind your eyes to it, do 

you?
The Witness: No, sir.
The Court: You see, I am not familiar with the 

institution myself. I am sort of like you are about 
our institutions down here; you don’t know much 
about them and I don’t know much about that out 
there.

The University of Chicago is sort of like the 
University of New York City, isn’t it, except New 
York University is supported by the City?

The Witness: I think it has some city support,
Mr. Marshall: As I understand it, sir, it ’s under 

the City Board of Higher Education and gets its 
money either from the City or the State.

The Court: But the University of Chicago is 
supported as a private institution?

Malcolm Pitman Sharp—for Plaintiffs—Direct



191

The Witness: Yes, sir.
The Court: Who is the president now?
The Witness: The Chancellor, that people think 

of first, is Mr. Robert Hutchins. The President is 
Mr. Earnest Caldwell.

The Court: I thought he was. Proceed with
your examination.

(260) Q. (By Mr. Marshall) Going, for example, to 
the University of Wisconsin and other schools, what value 
do the students get out of being associated with a first- 
grade university—the law school students, I mean! A. 
Well, I think the easiest advantage to point out is the ad­
vantage I was developing a moment ago, the advantage 
they get from being in the classes of law teachers who are 
thrown together with people in the other departments, par­
ticularly in the Social Science departments. For instance, 
Mr. Blough, taxation man in economics, he has gone to be 
one of the President’s advisors, and he was in very close 
touch with our tax man and came over and lectured in the 
Law School; they were virtually in partnership on the Law 
School program. That is a somewhat extreme case, al­
though we at Chicago are depending more and more on the 
advice of economists where our subjects touch business, as 
so many of them do. Even in such an elementary first- 
year course as Contracts, which I teach, I find that things 
in economics, things said about bargaining power and things 
of that sort, clarify my mind on powers and principles.

Of course, the students get some direct benefits. They 
may take courses. In our rather big J.D. program we en­
courage them to take courses in other departments in the 
University in the case of this advanced degree. They have 
a sort of informal (261) interplay in the dormitories; 
they live with the other students; and my judgment is that 
they get a great deal of benefit from that.

Malcolm Pitman Sharp—for Plaintiffs—Direct



Malcolm Pitman Sharp—for Plaintiffs—Direct

Q. You heard the testimony of Dean Brandis concern­
ing the Institute of Government at the University of North 
Carolina. Do you consider that an advantage to a law- 
school student, that that is present at the institution which 
he is attending? A. In view of Dean Brandis’ own re­
served testimony on the point, I think I can imagine some­
thing of the sort of controversy there may be. My own 
feeling is that Dean Brandis is correct and that it is an 
advantage. I used to know Mr. Coates and we were class­
mates. That is my feeling, that it would be an advantage, 
since it gives insight into governmental problems, prob­
lems of public service generally. I should suppose it would 
be a considerable advantage.

Q. How about the fact that members of the faculty at 
the University of North Carolina are advising and sitting 
with committees of the Legislature on legislative problems, 
including the drafting of legislation! A. I would think 
that would be a great advantage. At the University of 
Wisconsin, where the Capitol was at one end of the street 
and the University at the other, the interplay between Uni­
versity people and people in government is very stimulat­
ing, putting public service before people in the profession; 
(262) more and more significant.

Q. While we are on that subject, do you think you are 
capable of giving an opinion as to the reputation of the 
law faculty at the University of North Carolina? A. It 
has a very fine reputation; I suppose, to put it conserva­
tively, it is one of the two or three leading law schools of 
the South and one of the leading law schools of the nation.

Q. Getting back to the Law School itself, what about the 
reputation of its Law Review? A. A very fine Law Review.

Q. And it is recognized as among the group of Law 
Reviews usually used by students? A. I should say very 
much cited. I have had occasion to cite it myself not in­
frequently.



193

Malcolm Pitman Sharp—for Plaintiffs—Direct

Q. Since you have had experience with that, what benefit 
does a student get out of working on a Law Review? A. 
It is one of the devices, educationally, which is most use­
ful. I should say, in correcting the deficiencies of the case 
system, getting some of the advantages that, I take it, 
people used to get when they read law in an office under the 
immediate supervision of older people. When I was at law 
school I had the good fortune to be on the Review, and one 
of the criticisms of the Review man of our times, made 
sometimes by older lawyers, was that we spent too much 
time on our class- (263) room work and tended to neglect 
our Law Review work. That was thought to be a mistake, 
educationally. It was perhaps a jocular observation that 
had some force, but it was regarded by both the faculty of 
Harvard and the students as one of the primary educational 
devices; the same thing is true at Chicago, and the same 
thing is true, I think, in the law-school world.

Q. In your opinion, with the reputation which the Uni­
versity of North Carolina Law School enjoys as to its 
faculty and its Law Review and its general reputation, and 
comparing that with a school that’s been operating a maxi­
mum of ten years, and, for a moment, forgetting any of the 
inequalities which have been brought out in the testimony, 
about how long would it take that school to catch up with 
the University of North Carolina’s reputation and its Law 
Review’s reputation, if it ran full blast with all kinds of 
money? A. Well, that “ all kinds of money,”  you can do 
a great deal. I don’t know that I care to hazard a general 
response to that question. I f you had enough money per­
haps you could catch up with anyone.

Q. With the average amount of money a state law school 
is given? A. It would take quite a while.

Q. There has been some discussion about the Order of 
the Coif, and the question was raised which I think Dean 
Brandis (264) said he couldn’t answer, and since you



194

are from Harvard I am sure you can answer it. It is true 
that Harvard doesn’t have the Order of the Coif! A. That 
is true.

Q. Is that because of the Order of the Coif or because 
Harvard doesn’t want it! A. I have never heard the ques­
tion discussed in any authoritative circles either of the 
Order of the Coif or of Harvard. They just don’t have it.

Q. From your experience at the University of Chicago 
Law School, what effect do you think the presence of the 
Order of the Coif there and its being awarded to the stu­
dents at the top of the class, what benefit, if any, does that 
have as to the student body? A. My guess is that it has a 
mildly stimulating effect, probably not as stimulating as 
membership on the Law Review Board, but somewhat stim­
ulating, helpful, there.

Q. Now do you consider that in comparing law schools 
it is sufficient to just compare the plans of the two schools? 
A. No, I do not.

Q. Do you think that the mere fact that there is a small 
number of students is a reason for having a small library, 
if it ’s to be a law school? A. No, I do not.

(265) Q. Other than the question of duplicate copies, 
is there any connection between the size of the student body 
and the size of a library, as to whether or not it is a good 
library for law-school teaching and research purposes ? A. 
I should think not.

Q. As a matter of fact, it takes the same size library, ex­
cluding duplicate copies, for twenty-eight that it takes for 
three hundred? A. I should think it ought to. May I ex­
plain that answer?

Q. Yes, sir. A. It is the teacher who is most apt to want 
to range widely in the literature, periodical or other, and 
thus make available to his students the results of his rang­
ing. One of the cases which I have in mind, a case on con­
tracts, which we use, it seems to me, with good effect, is

Malcolm Pitman Sharp—for Plaintiffs—Direct



from the Reports of the Comptroller General, which we 
have. Not many students will want to consult the Reports 
of the Comptroller General very often, but I am very glad 
to have that case available for teaching purposes. I should 
think that a first-rate school, regardless of the size of its 
student body, would need as adequate a library as it could 
assemble, the fuller the better.

The Court: Do you recall the number of volumes 
that you have in your Law Library at the University 
of Chicago?

The Witness: No, sir, I don’t.
(266) The Court: Could you approximate it?
The Witness: I would rather not guess. I

thought of that as you were asking the other wit­
nesses.

The Court: Do you know how many they have at 
Harvard?

The Witness: No, I don’t.
The Court: Do you know of any reason why the 

Association of American Larw Schools fixes ten thou­
sand volumes as a minimum?

The Witness: I suppose because it wishes to take 
in a considerable range of law schools in its member­
ship, subjecting the teaching profession generally to 
the stimulus of admission to membership.

The Court: You are not willing to hazard a guess 
as to how many volumes you have in your own Li­
brary?

The Witness: I could easily find out, I would 
rather not hazard a guess.

The Court: It is considerably larger than the
Library at the University of North Carolina Law 
School?

The Witness: Yes. Harvard is still larger than 
that. Harvard has everything.

Malcolm Pitman Sharp—for Plaintiffs—Direct



196

The Court: Harvard is also a private school?
The Witness: It has everything in library mat­

ters.

Q. (By Mr. Marshall) I don’t know whether I am cor­
rect, or whether yon know the answer or not, but isn’t it 
true that there is an argument between three libraries as 
to which has the (267) largest number of books in the 
law school, and that is between Harvard, the Library of 
Congress, and the Bar Association of the City of New 
York? A. Yes, sir.

Q. As to who is on top? A. That’s correct.

The Court: I assume Harvard claims it ’s got the 
largest.

Q. Mr. Sharp, you are back to the point about the fac­
ulty and the library. Now, if I understand it correctly, the 
case books and the texts used with case books are prepared 
without regard to the possible limitation of some law school 
library—isn’t that correct? A. Yes, that’s correct.

Q. And that where the cases are taught the footnotes 
include large numbers of Law Review articles, and very 
often foreign reports, and very often Government reports 
—I mean by foreign, British Reports? A. That’s correct; 
sometimes European Reports nowadays.

Q. And in teaching that subject, if you are teaching it 
in a school with a limited library, do you not have to limit 
your course and limit the amount that you turn over to the 
pupil to either the number of books in the library or the 
number of books you can go find? (268) A. That is true, 
except as there may be several libraries in the neighbor­
hood. Then there is always a question of time. You can’t 
require too much running back and forth of the student, 
and can’t do an unlimited amount yourself.

Malcolm Pitman Sharp—for Plaintiffs—Direct



Malcolm Pitman Sharp—for Plaintiffs—Direct

Q. The ideal situation would be where the library was 
complete and the faculty could use it; that’s of the first 
importance! A. Yes.

Q. And then the student body could use it! A. Yes.
Q. Then you go down from the ideal situation to have 

as many as you possibly can of the good books! A. That’s 
correct.

Q. And in rating law schools as to library you would 
therefore rate it as to which library had the larger number 
of the useful books; I mean by that you wouldn’t count in 
those books that you would never use! A. That is correct.

Q. Now, Mr. Sharp, you heard yesterday, I am sure, 
Dean Turner testify that his Library is at least limited to 
the point that faculty members on occasion have to go up 
to Duke Law School Library to get material they want to 
teach with! A. Yes, I heard that testimony.

(269) Q. Do you consider that a detriment to the 
teacher! A. There’s a limited amount of such travelling 
around that you can do. Where you have members of a 
library staff you can send around to get things or call on 
to get things—occasionally we have to get something at 
Northwestern; some of ours are lost or they have things 
we don’t have. It ’s something of an obstacle, it takes some 
time to get it; you don’t have them at your fingertips.

Q. Do law professors at times have to use books not 
in the law library but in the general library of the institu­
tion! A. They do indeed, particularly in these days, Eco­
nomics, and in one of my fields, International Law, history 
books.

Q. So a good university library would be of more help 
to a law school student than a minimum library at a col­
lege! A. There’s no question about it.

Q. Considering the curriculum of one school and com­
paring it with the curriculum of another school, Avith just



198

the subjects as such, would you be able to make a compari­
son of the two schools? A. No.

Q. What else would you have to have? A. Perhaps I 
didn’t understand your earlier question.

Q. For example, you take the two catalogues and see 
the subjects listed, and one has more than the other. (270) 
A. That is what I thought you meant. The number of 
courses offered, I think, is of relatively small significance. 
My own view is that law schools have gone to something 
of an extreme in offering too many courses, and one thing 
of considerable importance is consolidation. Harvard Law 
School some years ago abolished the subject of Equity and 
put the material taught in Equity in Contracts, Property 
and related fields. I think that was an advantage. I share 
some of Mr. Nabrit’s views about Damages.

Q. Isn’t it true that regardless of the number of courses 
offered, to a large extent the comparative value of the two 
schools depends upon the faculty member teaching that 
course? A. Yes. You say the faculty. I am going to 
make sure to say there is a factor I think of greater value.

Q. What is that? A. The student body.
Q. As to the faculty, I don’t think there is any question 

that the experience of teaching law in a recognized law 
school is a recognized advantage. Is that not correct? A. 
Well, I would agree with Dean Brandis, I think, that there 
are cases in which it could be overdone. I sometimes think 
as I repeat courses that I don’t altogether improve in the 
liveliness of my presentation. I think you need a number 
of younger ones coming on to keep your older ones uneasy, 
(271) and a fair number of experienced teachers.

Q. What advantage do the faculty get that’s transmitted 
to the student by being a member of an active faculty; I 
mean active minds and well experienced in the field of 
teaching? A. I think there is no greater advantage a fac­
ulty man can have, except perhaps in some of his funda­

Malcolm Pitman Sharp—for Plaintiffs—Direct



Malcolm Pitman Sharp—for Plaintiffs—Direct

mental training, than to be under pressure from his 
colleagues both in the law school and related fields in the 
university.

Q. May we refer for a minute to the student body? 
Other than the necessity of having an active student body, 
an intelligent student body, what else do you consider 
worthy of being considered in comparing two student 
bodies? First of all, do you consider the student body an 
item to be used in the comparison of two schools? A. I 
think it is of primary importance; more important, if I had 
to choose, than the faculty. The profession is a competi­
tive one; the practice of law is competitive. Teaching of 
law should be kept competitive. The study of law is com­
petitive, and rightly so. The higher the level of competi­
tion, up to a point—maybe at some schools at times the 
competition reaches the breaking point. I have heard peo­
ple say that happened at times at Harvard, and sometimes 
I think we overdo it at Chicago at times, but that is not the 
common difficulty. The common (272) difficulty is inade­
quate competition. The main function a lively student body 
performs is the function of competition, arguing in class, 
out of class. Out-of-class argument is quite as important 
as in-class discussion—at restaurants, on street corners, all 
around—it is the mark of a lively school.

Q. Mr. Sharp, assuming for the purpose of this ques­
tion that the Negro school here in Durham was in a build­
ing of almost identical size with the building of the Univer­
sity of North Carolina, and, if you can assume that it is 
possible to get two faculties of equal standing, that they 
had a faculty of exact equal standing with the University 
of North Carolina, the same size library, Law Review 
present, the Order of the Coif present, and in general all 
the physical equipment exact duplicates of the physical 
equipment of the University of North Carolina, the only 
difference being that at the University of North Carolina



2 0 0

Malcolm Pitman Sharp—for Plaintiffs—Direct

all racial groups are admitted except Negroes, and at the 
second school, the Negro school, no students are present 
except Negroes, in your opinion, would those schools be 
equal? A. Is that the same size student body in this ques­
tion?

Q. The same size student body. A. It would still be 
unequal.

Q. And why, sir? A. For students who, like the plain­
tiffs here, are apparently (273) looking for tough com­
petition, not for an easy school to get through, but for a 
hard school which will push them, the advantage of com­
peting with other students who are drawn from, as I under­
stood the Attorney G-eneral yesterday, seventy-four per­
cent of the state’s population, as distinct from twenty-six 
percent, and, I take it, that portion of the population which 
would feel, with some reason, that it had supplied the 
leaders in the affairs of the state for some generation, 
presumably wealthier, presumably, by inference, better 
prepared in the early stages of education, if a student wish­
ing this kind of competition couldn’t get it, I should say 
he was dealt with unequally, that something in the nature 
of a monopoly was being set up which would interfere with 
the free play of what I understand to be competition, 
equality of opportunity as it ’s been understood in America.

Q. Do you consider, then, that this opportunity to com­
pete with all groups is a necessary element of a legal edu­
cation? A. It is essential, a matter of the highest im­
portance. I say this though I fully appreciate the work 
which Negro schools, including Howard, are doing by sup­
plying members of the profession, being open to Negroes 
to go there if they prefer, but to deprive a Negro who 
wants this kind of opportunity to compete, which is fur­
nished by the State, of the opportunity to join in that com­
petition, seems to me to be depriving him of equal (274) 
opportunities.



Malcolm Pitman Sharp—for Plaintiffs—Direct

Q. And do you believe that will affect him in future 
life as a lawyer? A. Well, there is one matter that hasn’t 
been spoken of in connection with competition at the Bar— 
I suppose it is the ease here as it is everywhere I know 
anything about. Negroes go to white lawyers, and I should 
suppose that a Negro choosing between a young Negro 
lawyer and a white lawyer might be influenced in favor of 
the young Negro lawyer if he stood well at the University 
of North Carolina Law School, or any other leading mixed 
law school, or a school like Harvard, particularly if he had 
held his own in competition with the best the state had to 
offer.

Q. You think that would help him in that phase? A. 
I do. I think it ’s of more importance that these associa­
tions would be of great value to him in his functions as a 
public servant.

Q. One point, Mr. Sharp: The testimony has been that 
there are some twenty-eight students at the Durham Negro 
school and some two hundred and eighty at the University 
of North Carolina Law School. Do you know of any recog­
nized law school in this country that has as little as twenty- 
eight students? A. No, I don’t.

Q. Do you consider there’s a possibility of making a 
good (275) law school out of a student body in this day 
of twenty-eight students? A. Well, the question of the 
optimum size for a law school, like the question of op­
timum size for a manufacturing plant, is a troublesome 
one, and I don’t suppose there are any eut-and-dried an­
swers. They have said Big Steel was too big at one point. 
For my taste, and the taste of some of my friends on the 
Harvard faculty, Harvard has made the mistake of allow­
ing itself to get too big. There is no question a school can 
get too big, and no question a school can get too big for 
individual instruction. We are providing it in our school



2 0 2

b y ___seminars. The advantages of competition, of which
I spoke, it seemed to me, required a student body of some 
size. I have been considered a member of the small-school 
division of our faculty. To my taste, our school is about 
the right size now, two hundred and fifty.

Q. With twenty-eight students distributed over three 
classes, there would be very little possibility of getting the 
type of competition and interchange of ideas you have been 
talking about ? A. I think it would be very difficult; -would 
take an extraordinary student body to do it.

Q. Do you believe that the average law professor could 
counteract that inequality? (276) A. I think it would 
be impossible for any professor to counteract that inequal­
ity.

Q. Mr. Sharp, one final question: On the basis of the 
testimony you have heard of Dean Brandis and Dean 
Turner, of the two schools, and, of course, Miss Elliott, as 
to the conditions at both schools, the plant, curriculum, fac­
ulty and other items, what is your opinion as to the relative 
value of those two schools as compared one against the 
other? A. The North Carolina College seems to me dis­
tinctly inferior; North Carolina College School of Law 
seems to me distinctly inferior to the School of Law of the 
University of North Carolina.

Mr. Marshall: Your witness.
The Court: It is about recess time now. We will 

take a recess until two o ’clock.
(Thereupon, at 12:55 p. m., a recess was taken 

until 2:00' p. m., of the same day.)

Malcolm Pitman Sharp—for Plaintiffs—Direct



(277) A fternoon  S ession

(The trial was resumed at 2 :00 o ’clock, p. m., pur­
suant to the recess.)

Malcolm Pitman Sharp—for Plaintiffs—Cross

MALCOLM PITMAN SHARP resumed the stand and 
testified further as follows:

The Court: Do you have any other questions you 
wanted to ask?

Mr. Marshall: No, sir.
The Court: Proceed with the cross examination, 

gentlemen.

Cross examination by Mr. Umstead:

Q. Doctor, you stated it but I have forgotten. How 
many years have you been a member of the law faculty of 
the University of Chicago ? A. Since 1933, seventeen years,

Q. And you are still there? A. Yes.
Q. How many teachers do you have in your Law School? 

A. We have a faculty of about a dozen professors, and we 
have five to six people we class as tutors, younger fellows.

The Court: What is your rank!
The Witness: Professor.

(278) Q. (By Mr. Umstead) Do you know how many 
professors you have got, that is, professors, associate pro­
fessors and assistant professors? A. No, sir, I don’t. 
Most of us have professorial rank.

Q. You do not know how many? A. I think I could count 
them up—thirteen of professorial rank, including one on 
leave; of those there must be seven or eight of full profes­
sorial rank.



204

Q. Now, in your Law School do you know what the 
appropriation for it for this year is1? A. No, I don’t. I 
have never been Dean and pay very little attention to our 
statistics.

Q. I believe you said you had about two hundred and 
fifty students? A. About that.

Q. Doctor, is this an official publication of the Univer­
sity of Chicago, entitled “ Announcements of the Law 
School” ? A. Yes, it is.

Q. Are you familiar with the general statement which 
appears on page 3 of that publication as to the objectives 
of the Law School at the University of Chicago? A. Some­
what familiar; I haven’t read it recently.

Q. I read you the following part of that statement: ‘ ‘ The 
1937 program reflected the conviction of the faculty that 
(279) instruction in traditional legal fields and techniques 
is no longer sufficient for legal education. Law should be 
studied in relation to the data and theory of social sciences. 
The student’s understanding of law should be deepened 
through the study of philosophy, legal history and compara­
tive law. Individual training should be given in research 
and writing and students’ capacities for independent work 
should be further developed in advanced seminars.”

Is that your understanding of the present purposes and 
scope of the Law School at the University of Chicago ? A. 
Provided you underline “ sufficient.”  It isn’t said that the 
study of law is not necessary for a law student. The study 
of law is still necessary.

Q. That is a decided change, isn’t it, in the generally 
prevalent conception of a law school? A. I believe you will 
find it stated in that statement that is the view of the 
founders of the University of Chicago back about 1900.

Q. This said that the 1937 program reflected the con­
viction of the faculty. I assume that is when the program 
took effect? A. It is a return to an old conviction.

Malcolm Pitman Sharp—for Plaintiffs—Cross



Q. If I correctly interpret what that program or policy 
means, it means that in a law school you should have 
courses (280) which not only prepare men to practice 
law, but prepare them to understand and engage in public 
accounting and— A. No, sir; you are quite mistaken about 
that.

Q. Well, you give a course, don’t you, in that, and desig­
nate it as part of your Law School! A. I think we have no 
longer a course in accounting. We have had a course in 
accounting. I t ’s been absorbed now in a course in corpora­
tions and—

Q. Well, you have—
Mr. Marshall: Your Honor please, I think the 

witness should be allowed to complete his answer.
The Court: Finish your answer.
The Witness: There is no pretense of training 

people to be accountants in the Law School.

Q. (By Mr. Umstead) You do train them to be econo­
mists, do you not? A. Certainly not.

Q. You say that they should be trained in the social 
sciences, in the data and theory and the relation of lawT 
to social sciences; is that correct? A. If you take it with 
the rest of the announcement, I think it gives a substantially 
correct impression. We have an economist who is at pains 
to point out to our law students (281) that most of them 
are not good economists and won’t be and should know 
when to consult an economist or an accountant.

Q. But in your Law School, as part of your curriculum, 
there is a course in economics ? A. There is.

Q. Are you familiar with the statute in North Carolina 
under which the Law School was established at the North 
Carolina College for Negroes? A. No.

Q. Are you familiar with the year that the statute was

Malcolm Pitman Sharp—for Plaintiffs—Cross



2 0 6

passed? A. No. I heard the testimony. I am not sure 
that I even recollect the testimony correctly on that point.

Q. Well, it has been testified in your presence, hasn’t it, 
that in 1925 the General Assembly of North Carolina pro­
vided for the establishment at the North Carolina College 
for Negroes of departments of law, pharmacy and library 
science and other professional departments? A. I have 
heard some testimony of the sort.

Q. Doctor, I believe you have not examined the Law 
School at either North Carolina. College or at Chapel Hill? 
A. That’s correct.

Q. You have never even been to either one, have you? 
A. I have been at Chapel Hill, but only in passing.

(282) Q. You have been to Chapel Hill, but I asked 
you if you had ever been to either of the Law Schools. A. 
No.

Q. What is your native state, Doctor? A. Wisconsin.
Q. Have you ever lived in the South? A. During a 

brief period when I was teaching in the Navy, a few months 
in 1918.

Q. When you were in the military service? A. Yes.
Q. You lived then where the Government sent you, like 

all of the rest of us? A. That’s right.
Q. Have you ever been connected with any institution 

operated on a segregated basis? A. No.
Q, Doctor, in reply to one of the questions you were 

asked before we recessed for lunch, I got the impression 
that you stated that no institution could arrive at a point 
of ultimate effectiveness that had segregation. Is that 
correct? A. W’ ould you state that question again?

Q, I understood your answer to mean, if not to say in 
so many words, that no law school or institution could at­
tain its ultimate degree of efficiency, of effectiveness and 
greatness, (283) if it had segregation. Did I under­
stand you correctly? A. I don’t think I testified about the

Malcolm Pitman Sharp—for Plaintiffs—Cross



207

effect on white schools. I testified about the effect on Negro 
schools.

Q. Well, if it is a fact that it is impossible to get the 
background that you were talking about this morning in a 
law school for Negroes, how could a white school get it! 
A. I would be willing to testify that I thought it was a 
disadvantage to a white school.

Q. A disadvantage to a white school to have segrega­
tion! A. To have segregation, yes. I don’t think I testi­
fied on that point this morning, but I would be willing to 
so testify.

Q. That is really the basis of your conclusion, isn’t it! 
A. No; I think the questions are quite different.

Q. I understood you to say that a pupil at the North 
Carolina College, because it was segregated and had only 
Negro students, that that student was unable to obtain 
by association the necessary backgrounds to give him a 
rounded opportunity to talk with all types of students! A. 
I testified to that effect, yes, sir.

Q. Wouldn’t the same thing be true at the University 
of North Carolina? A. No, not to the same extent, be­
cause, as I pointed out in my testimony and as we all know, 
the students at the University of North Carolina come from 
a section of the community (284) that has seventy-six 
percent of the population, traditions of leadership going- 
back many generations. It wouldn’t be as great a disad­
vantage to students at the University of North Carolina to 
have segregation as it would be to the students at the North 
Carolina College to have segregation.

Q. Do you know to what extent the Negro population of 
North Carolina covers all areas of our state? A. No.

Q. Doctor, would you say the same thing about a fresh­
man class, for example, in the academic departments of 
the two institutions? A. I don’t think I am qualified as an 
expert on that subject.

Malcolm Pitman Sharp—for Plaintiffs—Cross



208

Q. The basic question is the same, isn’t it! A. I think 
not. I think the competitive aspect of law-school training 
is of special significance.

Q. Doctor, the fact is yon believe that segregation ought 
to be eliminated, don’t you! A. I don’t know that I am 
an expert on that. I don’t know that I am prepared to 
answer that question categorically.

Q. Doctor, I ask you if you don’t believe that segrega­
tion ought to be eliminated, whether you are an expert on 
it or not. You have offered yourself as an expert on all 
these questions.

Mr. Marshall: If your Honor please, we have not 
offered this witness as an expert on everything. I 
can not see the materiality and object on that ground, 
the question as to his (285) beliefs on segrega­
tion. Segregation, and the legality of it, is a legal 
matter to be determined by the courts.

The Court: You asked him if it was possible to 
obtain equality of education where segregation ex­
isted, and he has expressed his opinion, so I think 
it would be thoroughly competent to ask him if he 
had that belief.

Mr. Marshall: My point is that we limited him 
to that.

The Court: On cross examination, I think it ’s
competent.

A. That question is, as you are aware, several million ques­
tions ; it breaks up into many questions.

Q. Can’t you answer just as one! A. No. Do I think 
that overnight in New Orlenas they could abolish segrega­
tion in elementary schools! I have no opinion on that.

Q. I didn’t ask you how long it should take, whether it 
be overnight or next year or ten years from now. I asked

Malcolm Pitman Sharp—for Plaintiff's—Cross



209

Malcolm Pitman Sharp—for Plaintiffs—Cross

you if it isn’t a fact that yon believe segregation should 
be eliminated. A. In the long run, yes.

Q. You have already said that in your opinion it ought 
to be eliminated in law schools. Now you say it is your 
opinion it ought to be eliminated everywhere in the long- 
run? A. Yes.

(286) Q. And the sooner the better, as far as you be­
lieve? A. I think I didn’t say anything of that sort.

Q. I am asking you now. What do you say about it? 
A. The sooner the better, other things being equal.

Q. You are not familiar with the personnel of the two 
law schools in question, that is, the faculty? A. I know 
members of both faculties.

Q, You don’t know them all? A. No.
Q. I believe you did testify this morning that it’s wise 

and advisable to have young men coming into the profession 
of teaching law? A. I did indeed.

Q. As it is in all professions? A. Yes.
Q. Doctor, have you appeared in any eases of this char­

acter as an attorney? A. No. I may say that in appear­
ing as a witness I appear without pay, and if I were paid 
it would go to the University of Chicago, under the contract 
I have with them.

Q. How many of these cases have you testified in as a 
witness? A. Two.

Q. That was the Oklahoma case and the Texas case? 
(287) A. That’s right

Q. Who requested you to testify? A. I think the re­
quest came, as far as I recall, personally through Bob Ming, 
who was a colleague of mine at the University of Chicago.

Q. What connection did he have with the case? A. He 
has been concerned with all these cases—

Q. I am not asking for his concern. I am asking his 
connection. You say he asked you to be a witness. What’s 
he got to do with it? A. I do not recall his exact position



Malcolm Pitman Sharp—for Plaintiffs—Cross

in the different cases. My recollection is that he was an 
attorney in the Oklahoma case and served as of counsel 
in the Texas case, if I remember correctly.

Q. Doctor, do you know why you were singled out to 
he requested to testify in this case? A. Well, my under­
standing* is that the Dean was originally asked to go down 
to Texas, and he was too busy.

Q. I ask you if the real reason hasn’t been because of 
your known views on the question of the elimination of 
segregation. A. I suppose that was one reason.

Q. Don’t you think that is the main reason? A. I hope 
the fact that I have experience in law-school (288) teach­
ing had something to do with it.

Q. But that would never have gotten you on the wit­
ness stand without the reason I just mentioned, would it ; 
and that is your purpose, isn’t it? A. I suppose it was 
known, my views about segregation in law schools, and 
I had had some experience in law schools.

Q. Your main object in this case, as in the others, isn’t 
to get the most good done for the most law students, but 
to get segregation eliminated in law schools? A. I come 
to listen to testimony; I hope I come open to conviction, 
and if I hear anything that sounds persuasive I comment 
on it in my capacity as expert.

Q. How can you come with an open mind when you 
have already testified you believe that segregation ought 
to be eliminated, and you are dealing here with an institu­
tion that has segregation? A. I believe I testified in Texas 
that it was conceivable to me that if a school got the best 
teachers in the country it could develop a situation in which 
there would be equality of treatment under segregation. 
I think I said I thought it would be extremely unlikely 
that any such situation would occur, but I hope I remember 
my oath when testifying to my opinion.

Q. I didn’t ask you that and didn’t ask you what you



211

testified to in Texas. I asked you, taking your two state­
ments, (289) one, that it is your conviction that segrega­
tion should be eliminated in law schools now, if I under­
stood you, and your following statement, that you came 
here with an open mind, now how could you come here 
with an open mind when you are dealing with one law 
school that has segregation, and you know it—and, as a 
matter of fact, both of them have it? A. Well, the other 
question of competition on which I have spent most time 
is concerning basing points in the steel industry. I have 
views about basing points in the steel industry, but my 
views have been somewhat modified since I signed a report 
on the subject back in 1934, but not much. I think it’s 
perfectly possible to come to a proceeding with a general 
view about segregation, a still more pronounced view about 
segregation in law schools, and listen to testimony, with 
the thought that perhaps there’s something that isn’t 
dreamed of in my philosophy that I will learn of which 
may even change my mind. I t ’s a big country.

Q. Doctor, you still haven’t answured my question, and 
I will now try to ask it this way: The issue here is
whether or not these two institutions furnish to their law 
students substantially equal opportunities for a legal 
education— A. That is what I understand.

Q. That is the question. You come in here and say 
that, in your judgment, there is no such thing as having 
an equal oppor- (290) tunity for a law education in a 
Negro school which is segregated in North Carolina. How 
can you be open-minded, then, about your testimony? A. 
If that is your interpretation of my testimony—

Q. No, I am asking you; you have testified. How can 
you be open-minded if that is your conviction and funda­
mental belief; and won’t you be frank enough to say that 
you couldn’t be open-minded on that point—or would you 
prefer not to answer it and let the record speak as it

Malcolm Pitman Sharp—for Plaintiffs—Cross



2 1 2

now is? A. What I would prefer to do is make a brief 
statement—

The Court: Go ahead.
The Witness: I have testified as to my opinion 

about segregation in general. I think I have indi­
cated that the steps to be taken are not free from 
difficulty, in my judgment, and I spoke of turning 
things over in New Orleans tomorrow morning. 
There are some things that, I understand can’t be 
done. The rate at which changes are to take place 
is a troublesome question. My general philosophical 
views on segregation I keep separate from the ques­
tion of my views about law schools. Coming more 
thoroughly to my views about law schools, I have 
come to think it very unlikely, very unlikely, that 
any segregated school is going to give to Negroes 
an education equal, the kind of legal education equal 
to the kind of legal education that is (291) fur­
nished by the great state schools in the South and 
elsewhere. I think it is highly unlikely. People 
need an opportunity to make a frictionless machine, 
the opportunity to do things other people think are 
impossible. The flying machine was thought to be 
impossible in my youth. It is possible, in that sense, 
that somebody will come up some day with a segre­
gated Negro school which will give to students of 
that school opportunity to complete with their fel­
lows in the practice at the Bar equal to the oppor­
tunity given to students of the great law schools. 
I think it is highly unlikely. I hope, if I meet such 
a case, I can recognize it and testify accordingly.

Q. In the statement you just made, I understood you 
to say that before you got here it was your view that 
educational opportunities for a law student at the North

Malcolm Pitman Sharp—for Plaintiffs—Cross



213

Carolina College couldn’t be equal to those at Chapel Hill. 
Is that correct? A. I think I will leave the record as it is.

Q. Is that correct? Didn’t you just get through say­
ing that? A. I did not. I just got through saying I 
thought it to be highly unlikely.

Q. You had that view before you left Chicago? A. 
I did.

Q. You had already determined, then, before you got 
to the court-room, what your answers in this case would 
be? (292) A. If counsel can’t distinguish between the 
impossible and the unlikely, then I can’t—

Q. I think I can distinguish between frankness and lack 
of frankness. I ask you now if you want to be frank, ox- 
leave the record as it is. A. I will leave it as it is.

The Court: I didn’t understand the state you 
say you were born in.

The Witness: Wisconsin.
The Court: Were you educated in the common 

schools of Wisconsin, the elementary schools?
The Witnesss: At elementary school, high school, 

and went to Amherst College.
The Court: And then you took law at Harvard? 
The Witness: Yes. I didn’t mean to be evasive 

about our books this morning. I just don’t keep 
those statistics in mind. My impression is that we 
have got about a hundred and fifty thousand volumes. 

Mr. Umstead: That’s all, sir.

Redirect examination by Mr. Marshall:
Q. The question was asked you on cx-oss examination 

about the benefit of bringing young blood into a faculty. In 
the Uni- (293) versity of Chicago and other law schools 
what position is usually given to the young lawyer, fresh 
out of law school, who had had no practical experience in

Malcolm Pitman Sharp—for Plaintiffs—Redirect



214

private practice of law and has had no law-school teaching 
experience? A. Well, generally he is treated a little better 
than he is in the colleges and is generally given an assistant 
professorship.

Q. Do you know of any law school that makes an asso­
ciate professor out of a graduate of a law school who has 
never practiced and never had any teaching experience? 
A. Well, I don’t know of any, but, as you know, our rank 
system in law schools is a little peculiar, a little on the 
generous side, because of the competition of practice. I 
don’t know of any.

Q. That varies from school to school? A. Yes.
Mr. Marshall: That’s all.
(Witness excused.)
Mr. Marshall: If your Honor please, if we can 

have just a moment, we have an exhibit we will try 
to get an agreement on.

May it please the Court, we have here two lists 
which have been prepared under our direction, which 
are as follows: The first is marked “ Prominent 
Alumni of University of North (294) Carolina 
Law School.”  It is taken from Who’s Who, at ran­
dom and the pepole we knew about, for instance, 
Judge Parker, and the Attorney General here, and 
others, giving the page from Who’s Who, showing 
that they are graduates of the University of North 
Carolina.

The other list is a list from Martindale-Hubbell 
Law Directory, which is only those who have bio­
graphical sketches. It does not include all the law­
yers of North Carolina, but a substantial number.

The Court: You mean all the lawyers of North 
Carolina who attended the University Law School?

Mr. Marshall: Yes, sir. It shows those who at-

Malcolm Pitman Sharp—for Plaintiffs—Redirect



215

Colloquy of Court and Counsel

tended the University of North Carolina Law School 
and Duke University and Wake Forest and schools 
out of the state, 
be wrong.

Mr. McMullan: I understand you do not contend 
these are all the lawyers in North Carolina who have 
graduated from the Law School?

Mr. Marshall: Just a list at random of those 
who stand pretty high.

(The lists referred to were received in evidence 
as Plaintiffs’ Exhibits 6 and 7, respectively.)

(295) Mr. Carter: Your Honor, if the defend­
ants will agree to the qualifications of one of the 
plaintiffs, James Lassiter, if the defendants will 
admit he is qualified, we won’t have to put him on 
the stand to establish his qualifications; if not, we 
will have to.

Mr. McMullan: Your Honor, the understanding 
is that, if we don’t agree to what he is asking, they 
can interrupt and put the witness on the stand.

The Court: You will admit he is qualified, or, if 
you don’t, give them an opportunity to put him on 
the stand later and show it?

Mr. McMullan: Yes, sir.
Mr. Carter: Subject to that qualification, your 

Honor, the plaintiffs rest at this time.
# # #



216

(515) ERVIN N. GRISWOLD, called as a witness on 
behalf of the plaintiffs, being duly sworn, testified as fol­
lows :

Direct examination by Mr. Marshall:

Q. Will you give your full name and address, please, 
sir? A. Ervin N. Griswold, Harvard Law School, Cam­
bridge, Massachusetts.

Q. What is your present position? A. I am Dean of 
the Harvard Law School.

Q. Will you give us briefly your background, educa­
tional qualifications, and all the things you have been doing 
those years? A. I received my A.B. degree from Oberlin 
College, in Ohio, in 1925, and also an A.M. from Oberlin 
College in the same year. In 1928 I received the LL.B. de­
gree at the Harvard Law School. I stayed the following 
year and received a Doctor’s degree, S.J.D. degree, at 
Harvard Law School in 1929. I then was admitted to the 
Bar of Ohio and went to Cleveland, my home, expecting 
to practice there all my life. Within a few months I was 
asked to go to the office of the Solicitor General in the De­
partment of Justice, in Washington. I went there and 
stayed five years, working with Solicitors General. The 
final one under whom I served was a distinguished North
(516) Carolina lawyer, J. Crawford Biggs. I also worked 
in the office with another North Carolina lawyer, Angus 
McLean.

My work there consisted in working with the senior 
officers and in the practical handling of cases in the court, 
representing the Government. Perhaps half of my work, 
especially in the latter years, was in Federal tax cases.

In 1934 I was invited to the faculty of the Harvard 
Law School. I went for one year as assistant professor, 
and in 1935 became a professor of law. I have taught con­

Ervin N. Griswold—for Plaintiffs—Direct



217

tinuously since 1934, also engaging in a modest amount of 
practicing in connection with my teaching. On July 1, 1946, 
I became Dean of the Harvard Law School and have held 
that position since.

Q. Dean Griswold, did you testify in the second Sipnel 
case in Oklahoma? A. Yes, I did.

Q. You did not testify in the Sweatt case, as I remem­
ber? A. No.

Q. You are familiar with the Sweatt case, though, are 
you not? A. Yes, I am. I have read the record of the 
Sweatt case.

Q. Dean Griswold, you have seen the Durham North 
Carolina College Law School, the Negro Law School, this 
morning, have you not? A. Yes, I have.

(517) Q. Have you ever seen the Law School of the 
University of North Carolina? A. No, I have not.

Q. Do you know of it by reputation? A. Oh, yes; very 
well.

Q. Along that line, how long have you been attending 
meetings of the Association of American Law Schools? A. 
I attended my first meeting, I believe, in 1934, and have 
attended practically all of them since that time.

Q. In your profession as professor of law and later 
Dean of Law at Harvard, are you familiar with the reputa­
tion enjoyed by the Law School of the University of North 
Carolina? A. Yes, I am.

Q. What would you say its reputation is ? A. Its repu­
tation is excellent, very fine.

Q. Do you know anything of the reputation of the 
school you visited this morning, the Negro school? A. 
Well, it has very little reputation. I t ’s known as the Negro 
law school in North Carolina, but, except for its Dean, 
whom I have met at association meetings, its faculty and 
its student body and its graduates have no ascertainable 
reputation.

Ervin N. Griswold—for Plaintiffs—Direct



218

Q. In comparing two law schools, what factors would 
yon use or would you need in order to give an adequate 
opinion as to the relative value of two law schools! (518) 
A. Well, a great many different factors.

Q. For example, would the plants of the two schools 
he a factor! A. They would be a factor, but not control­
ling.

Q. Would the faculty be a factor! A. Yes, an important 
factor.

Q. The library! A. Yes.
Q. Prestige and reputation! A. Yes.
Q. The size and breadth of the student body! A, Yes.
Q. Would you care to weigh those at all, or would you 

use them for the sum total! A. Well, I don’t think I could 
give a numerical weight to those items. I would have to 
take into account all of those factors, and others, in com­
ing to a conclusion.

Q. Well, as to the faculty, what factors would you use 
in comparing the faculties of two law schools! A. The size 
of the faculty, the training, background and experience of 
the faculty members, their general reputation in the law­
teaching world, part of which would be the extent to which 
they had contributed to the development of the law and 
shown scholarly capacity by published writings.

(519) Q. Getting to the first factor, did you examine 
the catalogues of the two schools this morning! A. Yes, I 
have.

Q. On the information that is included in the two cata­
logues, can you compare those faculties! A. Yes.

Q. What would you say as to the two faculties! A. The 
faculty of the University of North Carolina Law School is 
larger, has had more experience, and has a considerably 
greater amount of published research and a wider and 
greater reputation.

Q. Is there any question in your mind, comparing the

Ervin N. Griswold—for Plaintiffs—Direct



219

value of the two faculties, that the faculty at the University 
of North Carolina Law School is a better faculty than that 
at the North Carolina College Law School! A. In my opin­
ion, the faculty at the University of North Carolina Law 
School is a much better faculty than that at the North 
Carolina College.

Q. Suppose you took them member by member and com­
pared them, would you find the same to be true! A. On 
the information available to me. I am not personally 
acquainted with anyone but the Dean on the faculty here. 
I do know in varying degrees most of the members of the 
faculty at (520) Chapel Hill.

Q. Well, assuming that the only thing in the record in 
this case is the information contained in the catalogue, with 
the exception that two members of the faculty demonstrate 
a good teaching ability, with nothing more than that to 
go on, against the knowledge you have and the reputation 
of the University of North Carolina’s faculty, what would 
be your opinion there! A. Well, it seems clear to me that 
the faculty at the University of North Carolina is a better 
faculty.

Q. Do you believe that if two schools have two faculties 
that are different in grade and level it is possible for the 
school with the inferior faculty to give an education equal 
to that with the superior faculty, under any circumstances! 
A. If the inferiority is marked, as I believe it is here, I do 
not believe it is possible to give an equivalent education.

Q. There has been considerable testimony that whatever 
inequalities there might be between the two schools, those 
inequalities are offset by the fact that there are approxi­
mately twenty-eight students at the Negro school, over 
aaginst two hundred and eighty students at the University 
of North Carolina Law School. Would that be your opin­
ion! (521) A. It is my opinion that it is not possible to 
run a law school on the best basis, on a sound basis, with

Ervin N. Griswold—for Plaintiffs—Direct



2 2 0

as few students as twenty-eight. I don’t mean to say it 
isn’t possible to do it and get people through the Bar exam­
inations, but it is my opinion that a law school cannot be 
operated soundly with as small a student body as twenty- 
eight.

Q. Dean Griswold, do you believe that where we have 
a law library of sixty-five thousand volumes and two hun­
dred and eighty students, over against a law library of 
thirty thousand volumes and twenty-eight students, that 
because of the smaller number of students there is not 
the necessity for having sixty thousand volumes? A. I 
don’t think the number of students has any bearing on 
the number of volumes that are desirable in the law-school 
library.

The Court: Do you think the nature of the
volumes in the library has anything to do with it?

The Witness: Yes, sir, the nature of the volumes 
certainly does.

The Court: Would duplications and discarded 
volumes be worth anything?

The Witness: Discarded volumes would not be 
worth anything. When you have a larger number 
of students you need certain duplications. I assume 
that as to North Carolina (522) Reports, you 
would need more sets of those than you would in 
a school of a smaller number.

The Court: I think it is in evidence there were 
seventeen sets of North Carolina Reports—and they 
run up to three hundred and how many volumes f

Mr. McLendon: Two hundred and thirty now
actually printed.

The Court: You wouldn’t need that many sets 
if you had a smaller number of students?

The Witness: No, certainly not. In counting

Ervin N. Griswold—for Plaintiffs—Direct



221

the books in the library, I think I would be inclined 
to eliminate all duplications.

The Court: I think for the purpose of this trial 
it would be unwise to proceed on that basis, because 
I think both libraries have included all volumes, 
regardless of how many times any set is duplicated.

Q. (By Mr. Marshall) Dean Griswold, in comparing 
two law schools, what would you say as to the reputation 
of the law school involved? A. 'Well, I think it is a dis­
tinct and relevant factor.

Q. As to the student? A. As to the student, yes, cer­
tainly.

Q. What about the fact that there is a Law Review in 
one school and—first of all, let me ask you this: Do you 
con- (523) sider the Harvard Law Review as solely an 
advertising medium for the Harvard Law School? A. No; 
in fact, I don’t consider it at all as an advertising medium.

Q. Have you ever heard any law teacher or professor 
give that opinion, that that was the purpose of a Law 
Review? A. I have been told that that opinion was given 
here, but I don’t believe I have heard it myself.

Q. You never heard it before? A. No.
Q. What do you consider the purpose of a Law Review 

to be? A. I consider the purposes of a Law Review to 
be primarily two—thei’e are some subsidiary ones, but, 
first and foremost, to serve as a unique and remarkable 
form of legal education for a relatively small proportion 
of your students—unfortunately you are not able to make 
that concentrated type of work available to all of the 
students; and, second, to serve as a medium for scholar­
ship and working toward the improvement of the law. 
The first purpose is an educational and institutional pur­
pose ; the second is an external and public purpose. Both 
of them, I believe, are important and have been served to

Ervin N. Griswold—for Plaintiffs—Direct



2 2 2

varying degrees by the Law Reviews maintained by many 
law schools in the country.

Q. If you were rating Law Reviews from recognized 
law schools (524) where would you rate the University 
of North Carolina’s Law Review? A. It would rate high; 
not at the top, but in high place.

Q. You wouldn’t put it down average, would you? A. 
No, it ’s above average.

Q. In getting requests for names of students for jobs 
that you sometimes get, isn’t it becoming the policy that 
more and more requests are restricted to Law-Review 
men? A. A great many requests are initially restricted 
to Law-Review men. There are not enough Law-Review 
men to fill the places, and they take others, but the LawT- 
Review man undoubtedly has an easier time finding an 
opening than a non-Law-Review man.

Q. That has been your experience as Dean of Harvard 
Law School? A. Oh, yes.

Q. What do you conceive to be the purpose of legal 
education? Why do we maintain these law schools? What 
is the purpose of it? A. That, of course, is a very broad 
question. A part of the purpose, but not the whole pur­
pose, is to train persons for the technical requirements 
of the practice of law, including the education which they 
need to enable them to pass the Bar examination of the 
state in which they want to practice; (525) and small 
schools, I think, content themselves with just about that, 
and no more.

In my opinion, however, law schools have a much larger 
obligation and a much broader function. Law and law 
training, it seems to me, in these times involve not merely 
technical proficiency, but some awareness of the fact that 
law is not only a social science but, I would go so far as 
to say, the most important social science, and the lawyer 
should get from his law-school training an understanding

Ervin N. Griswold—for Plaintiffs—Direct



223

of the function of laws in society, of his function as an 
officer of the court, and, to use a fancy phrase, of social 
engineering in the light of his legal training.

Therefore, to me, a law school which confines itself to 
teaching simply a certain number of precepts or rules is 
not merely not doing its job hut is giving an inadequate 
education to its students. I am not meaning by that to 
suggest I think that is the type of law school that the 
Law School here in Durham is.

Q. Well, in general, what necessity do you believe there 
would be for the student to have an opportunity to go to 
school with a good cross-section of the community? A. 
I think that is most important.

Q. Do you think it is possible for two schools to be 
(526) equal if one has a complete cross-section of ap­
proximately seventy-five percent of the population and the 
other law school is restricted by rule and practice to 
twrenty-five percent of the population; do you think it ’s 
possible in that twenty-five percent school to get the educa­
tion you get in the other one ? A. In my opinion, it is not.

Q. Will you give your reasons for that? A. Well, it ties 
in with the answer which I gave to the previous question, 
the fact that a legal education is not simply a matter of 
learning by rote or otherwise a certain number of rules 
and standards and forms and matters of practice. Legal 
education, when properly conducted, provides a survey of 
the whole range of human experience, of the whole range 
of relations of men to each other and the problems which 
arise out of those relations. It also involves that very diffi­
cult and important matter of the relations of man with man, 
of dealing with people, of how to get along with people, of 
how to resolve controversies by negotiation instead of by 
litigation or fighting. After all, one purpose of the law 
is to prevent battles and murder and mayhem, but it seems 
to me that a lawyer in active practice doesn’t do his job

Ervin N. Griswold—for Plaintiffs—Direct



224

when he stops merely at that. He ought to prevent many 
controversies, and he ought to be adept at settling and ad­
justing (527) other controversies without taking them 
to court. All of that involves experience with and knowl­
edge of your fellow-men.

A law school, it seems to me, is and can be a remarkable 
place for a man to get that sort of experience and contact. 
In the first place—and this bears on the question of the 
size of the school too—it is my firm opinion that a large 
part of legal education, and, indeed, the most important 
part, is what I would call self-education; it is education 
which the student gets through his own efforts and through 
interchange with his fellow students. I don’t mean by that 
to say that classroom work is unimportant. The classroom 
is the place that stimulates the self-education and helps to 
focus it and keep it on the right track, but I don’t think 
there is any school in the country where a law student can 
get an adequate legal education by simply going to class 
and doing nothing outside of class other than read his case 
book and do the bare preparation for class.

I think the heart of legal education comes from dis­
cussion with his fellow students, in groups, individually, 
early in the morning, late at night, at meals. Our students 
at Cambridge are constantly complained about by students 
of other parts of the University because they won’t do any­
thing but talk law. I think if they spend their whole lives 
(528) talking law they will be bores and not be very popu­
lar, but as long as they are in law school it seems to me 
important that they are talking in groups outside of class 
and away from the professors.

To make that contact, with the educational possibilities 
that it can have, there must be a sufficiently numerous group 
to talk with; not all at once, but at different times and on 
different occasions, so that you get some reflection of the 
insights and reactions and atitudes of other people. And

Ervin N. Griswold—for Plaintiffs—Direct



225

it must also be a group which is sufficiently diverse in its 
background and outlook and economic and social status that 
the student gets an opportunity to see how these problems 
look in the eyes and how they lie in the minds of other 
students with different backgrounds.

Q. What about the spirit of competition among the stu­
dents; is that along that same line? A. That is along that 
same line. I think it is important. It can be carried too 
far. The law is not a cut-throat activity. On the other 
hand, it is an activity in which the man who plugs and puts 
in a little more effort, finds a new idea or recent decision, 
may prevail over the other man; and certainly I think that 
a law student should learn well and thoroughly what I 
might call the efficacy of effort.

Q. Take the example of a school like the Law School of 
(529) the University of North Carolina, where even dur­
ing the congested building period there are rooms set aside 
in surplus government-property buildings where there are 
tables for study, typewriter spaces and sets of the North 
Carolina Reports and some of the basic volumes, and other 
places in the basement where the students can get together, 
and what you saw at the Negro school, and then take in 
addition to that the fact that there are something less than 
seventy-five percent, seventy-four and a fraction, is white 
in the state of North Carolina, and that means that the 
University of North Carolina School of Law draws from 
that part of the population, and the twenty-eight at the 
North Carolina College drawn from this other percentage 
and some from outside of the state, is it possible for those 
two schools to be equal? A. In my opinion, it is not.

Q. Is there any thing, in addition to what you said be­
fore, that would amplify your opinion? A. Well, you asked 
a rather narrow question there.

Q. My point was, do you believe in that situation the 
lack of opportunity to compete with those other students

Ervin N. Griswold—for Plaintiffs—Direct



226

of all groups and the lack of opportunity to discuss mat­
ters-—• A. Lack of opportunity to have contact with what 
is substantially a dominant part of the community seems 
to me to (530) make it impossible for education at the 
school where only twenty-five percent can go, or people 
from twenty-five percent can go, equal to that at the other 
school.

Q. I find, Dean Griswold, that my percentages are off. 
It is 72.3 white and 27.7 Negro. Would that change your 
answer? A. That wouldn’t make any difference.

Q. I know that you do not have the Order of the Coif 
at Harvard, but would you say that that is of any value 
in law-school education? A. I think that some form of 
stimulus and recognition of successful effort is desirable in 
a law-school education. We don’t have the Order of the 
Coif, but we do do it in other ways.

Q. Dean, would the fact that one school, the University 
of North Carolina, has the Order of the Coif and the Law 
Review, and the Negro School has neither, would that be 
an important factor of inequality? A. To me the Law Re­
view is important; the Order of the Coif is a factor, but not 
a serious one.

Mr. Marshall: Your witness.

(531) Cross examination by Mr. McLendon:

Q. Dean Griswold, I understood you to say that your 
legal education was acquired at Harvard? A. Yes.

Q. And your entire experience as a teacher has been at 
Harvard? A. Yes, except for two summers that I taught 
at the University of Columbia Law School.

Q. Harvard Law School, of course, is a very large 
school? A. If you strike out the “ very,”  I will say yes.

Q. How large is it? A. Harvard Law School had 1,530 
students last year. We expect to have just under fifteen

Ervin N. Griswold—for Plaintiffs—Cross



227

hundred this year, except for what the present war situa­
tion will do to us.

Q. Are there any other law schools in the United States 
that you know of that have a larger enrollment than that? 
A. Yes, there are two or three in and around New York 
City; St. John’s Law School, of Brooklyn, and it may he 
that New York University has. In the case of New York 
University, a considerable number of their students are 
part-time.

Q. Is there any such thing as a standard law school, 
in your opinion? A. Oh, no, certainly not.

(532) Q. No such animal exists, to your knowledge? 
A. Well, when I have said there isn’t such a thing, I guess 
it doesn’t exist.

Q. Now you have given us your philosophy about what 
a law school ought to be. How long has Harvard Law 
School been operated on that philosophy? A. Well, as long 
as I have known anything about it, and in terms of read­
ing history I would say at least since about 1870, probably 
earlier, 1870 is the year Dean Randall came to the school.

Q. It is generally understood that your school and the 
Law School of Chicago University are quite similar with 
respect to what you have just given us as your philosophy 
of a law school. Is that right? A. Well, I may not willing 
to accept the attribution of this being my philosophy of a 
law school.

Q. That is what he asked you, and that is what you 
gave? A. I don’t think either he or I used the word 
“ philosophy.”

Q. That is my word, but you gave us your conception 
of what you thought a law school ought to be? A. Of the 
purposes and objectives.

Q. Is Harvard Law School operated with that objective 
and that purpose? A. I think so.

(533) Q. If you put it in layman’s language, it means

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228

this: You believe a law school should he operated to teach 
a little law, but not too much, philosophy, sociology, eco­
nomics, accountancy and the philosophy of government, 
and then the graduate would go out and go up on top of 
Mount Sinai and say: I am going to intervene between
Moses and the Lord—that’s your conception of a law 
school? A. I didn’t say that, and I don’t accept it.

Q. Isn’t that what it amounts to? A. No.
Q. Didn’t you say the purpose of a law school was to 

teach them how to live with folks? A. That is one of the 
purposes.

Q. How to get along with people? A. Yes.
Q. You teach them philosophy? A. Except as a part 

of jurisprudence, which is legal philosophy, we don’t.
Q. And you used the word “ social engineering’ ’ ? A, 

Yes.
Q. You try to graduate social engineers? A. We try 

to graduate people who are capable of some social en­
gineering*.

Q. What in the world is a social engineer? (534) A. 
I  said it was a rather fancy phrase. I am trying to indi­
cate the great desirability and necessity, well recognized by 
law schools generally, including that of the University of 
North Carolina at Chapel Hill, that an adequate graduate 
of a law school should be able to do more than merely pass 
the Bar examinations and know the technical requirements 
of practicing law.

Q. Now you spoke with some knowledge, apparently, 
of the University of North Carolina. You have never 
visited it? A. No. I know its faculty.

Q. You have only read its catalogue? A. I have read 
its catalogue. I have known its graduates from time to 
time.

Q. How many of its faculty are you acquainted with

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229

personally? A. Well, several. I can go through, the list 
and give it to you.

Q. All right. A. Mr. Baer was a student at the Har­
vard Law School two years before I was. Mr. Brandis 
I have known for some time. Mr. Coates is a graduate 
of the Harvard Law School. Mr. McCall I met this morn­
ing, or today. Dean Van Hecke and Dean Wettach I 
have known at Association meetings, Dean Van Hecke for 
twenty (535) years.

Q. They are the ones you know personally! A. Yes, 
but that is one, two, three, four, five, six out of ten.

Q. Have you ever seen either one of them teach? A. 
No.

Q. Do you recognize that there is a distinction between 
the reputation and the character of a law school? A. 
Well, that depends upon how you define “ character.”

Q. You are familiar with that distinction in our courts, 
aren’t you, where we speak of the reputation of a man and 
the character of a man? A. I find it somewhat difficult 
to apply that to a school.

Q. Can you apply that to a school? A. If you mean 
is it possible there is a distinction between the reputation 
of a school and its capacity to perform its function, there 
could be.

Q. Wouldn’t you admit that the best test of any law 
school is not its reputation, what people think about it or 
may say about it because of its fine buildings and fine 
library and rich alumni and the reputation of an institu­
tion like Harvard, but isn’t the best test the character of 
the school and the work that it does? A. How are you 
going to find out its character and the (536) work it 
does? Isn’t its reputation some evidence of that?

Q. Isn’t its best test the work that it does? A. No, not 
necessarily.

Ervin N. Griswold•—for Plaintiffs—Cross



230

Q. You wouldn’t admit that1? A. No.
Q. Did you ever know the reputation of Trinity College 

Law School when it was run and operated by Dean Mor- 
decai? A. No, I did not. That was before my time, I 
believe.

Ervin N. Griswold—for Plaintiffs—Cross

The Court: How old are you?
The Witness: Well, before my time as a law

teacher and as a lawyer. I am forty-six years old.

Q. (By Mr. McLendon) Did you ever know the reputa­
tion of Dean Gulley, of Wake Forest Law School? A. 
I have heard his name but am not acquainted with him.

Q. He had no reputation that ever came to your atten­
tion? A. Again time is important. When was he Dean 
of the Law School?

Q. You have been teaching since what year? A. 1934.
Q. And you have never seen any member of the Univer­

sity of North Carolina faculty teach? A. No.
Q. And have never seen any member of the North Caro­

lina College faculty teach? (537) A. No.
Q. You know Dean Turner? A. Yes.
Q. You have a high opinion of him as a law teacher and 

as a Dean? A. I do.
Q. Did you know that North Carolina College was estab­

lished in 1939 by the General Assembly of North Carolina 
for the legal education of Negroes? A. That the Law 
School was established?

Q. Yes. A. Yes, sir.
Q. Did you know that it had been operated continuously 

since that time? A. Yes, sir.
Q. And operated as a permanent institution? A. Well, 

I understand and believe that it is a permanent institution. 
I don’t know that.

Q. There has no suggestion been made to you by anyone,



231

has there, that the Law School of North Carolina College 
was created just for the purpose of this kind of litigation! 
A. That is not as easy to answer as it sounds. I fully be­
lieve it was created as a direct result of the Gaines case,
(538) and that there was no law school in North Carolina 
to which a Negro could go until the Supreme Court said 
the State must do something about it. Then the school was 
created—not as a result of the Sipuel and Sweatt cases. 
It has been operating since 1939, and I think it is very 
much to the credit of the people of North Carolina that, 
though they got off to a late start, they got off to an earlier 
start than most anybody else did, and I think they have 
been making a bona fide effort to operate a good school in 
this college. In other words, let me say this: that to me 
this is a different and a harder problem than the Oklahoma 
and Texas cases were—

Q. Will you elaborate on that! A. (Continuing)— 
where, in my opinion, the schools were utterly inadequate, 
the schools were perhaps—well, perhaps fly-by-night is too 
harsh a word to apply to them, but they were made for 
the sole purpose of anticipating a threatened lawsuit and 
did not, as of the time of the lawsuit, have any period of 
experience in actual operation and had substantially no 
student body at all.

Now the North Carolina College Law School has been 
in operation for eleven years; it has been well supported 
by the State; it has a Dean, and I believe the President of 
the College, who are determined to do it on as good a basis 
as they can.

(539) That leads me into something else, which I think 
is most important. There has been a great deal of talk 
here about the adequacy of the North Carolina College. I 
think that it is most important not to confuse adequacy 
with equality. I do not think that the North Carolina 
College Law School is poor, hopeless, a disgrace, or any­

Ervin N. Griswold—for Plaintiffs—Gross



232

thing of that kind; on the other hand, I think it is very 
commendable that as much could have been done. I think 
that a great deal of devoted thought and effort must have 
been put into that school to bring it to the place where it 
has been brought to at this time, in the eleven years; but 
it still seems to me to be entirely clear that it is not equal 
to the University of North Carolina Law School at Chapel 
Hill.

Q. Do you recognize any differences between operating 
a law school like Harvard and operating a State-supported 
institution? A. Oh, yes, there must be great differences. 
One of them is that you have got the taxpayers behind you 
to pay the bill.

Q. And one of them is that the legislators usually insist 
that you run the law school for North Carolinians, to pre­
pare them to practice law and not become social engineers? 
A. Well, that- varies a great deal. The University of Michi­
gan is a State-supported school, and is operated on the 
basis I have indicated. It is my belief that the University
(540) of North Carolina is operated on the basis I have 
indicated.

Q. I understood you to say that, and it is quite surpris­
ing. Do you have anything to base that on? A. My knowl­
edge of the people operating it there.

Q. Is there anything else you can base that on? A. Well, 
that’s a good deal.

Q. Can you name a single person who has ever been 
connected with the University of North Carolina Law 
School who spoke in terms of social engineers? A. Well, 
it would be hard for me to put those two words in their 
speeches, but both Dean Van Hecke and Dean Brandis, in 
my opinion, share the same ideals of legal education that 
I do.

Q. In your opinion? A. In my opinion.
Q. Do you attach any importance to the fact that North

Ervin N. Griswold—for Plaintiffs—Gross



2 3 3

Carolina College has been approved by the American Bar 
Association? A. Oh, yes, I attach some importance to that. 
If it hadn’t been approved it would be overwhelmingly 
clear that it was not equal.

Q. Do yon attach any importance to the fact that it has 
made application and the evidence offered here is that it 
will, in all probability, be accepted as a member of the 
Association (541) of American Law Schools? A. Yes; 
the same importance.

Q. Are yon a member of such association? A. Nobody 
but- schools are members.

Q. I meant your school. A. Harvard Law School was 
a charter member; and, incidentally, Judge Biggs was in­
strumental in the formation of that association, in 1900.

Q. Have you ever in your experience been designated 
by the American Bar Association or the Association of 
American Law Schools to inspect any college making ap­
plication for membership in either one of those institutions? 
A. No.

Q. I believe there is a member of the faculty of Harvard 
Law School who is a member of one of the committees of 
the American Association of Law Schools, is there not? A. 
From time to time members of the faculty have held various 
offices. Several of our faculty members have been presi­
dent and chairman of the executive committee.

Q. You testified, if I understood you, that it was im­
possible, in your opinion, to have a g'ood law school with 
twenty-eight students? A. Yes.

Q. How would you account for the existence of good law
(542) schools all over the country with less than twenty- 
eight students, during the war? A. They were not gnod. 
I can speak from experience on that. "We were down to a 
very small size.

The Court: What was your size?
The Witness: We got down to 144 in the regular

Ervin N. Grisiuold—for Plaintiffs—Cross



234

term and 45 in the summer term; and, as far as I 
was concerned, and apart from the war situation, it 
was one of the most discouraging situations I have 
ever been through.

The Court: Did you know that the enrollment of 
the University of North Carolina Law School was 
down to thirteen?

The Witness: I knew they were very low all over 
the country. All that a law school is doing in such 
a period is maintaining a skeleton in order to keep 
the place going to be ready to do the job when it 
gets through. If I was told that a young man who 
wanted to get a place in my law office had studied 
his law during that period in law school, I would feel 
that he hadn’t as good a legal education as he would 
have had in normal times.

Q. (By Mr. McLendon) You say that notwithstanding 
the fact that thirteen students had exactly the same teachers 
they would have had in a school of—■ A. I don’t believe 
they did.

Q. I say if you assume they had the same teachers.
(543) A. I would say that, because a school is made up 
not only of a faculty and a library, but also of a student 
body. When they have no student body you lose an im­
portant element in the school.

Q. How many students would you say is a minimum 
for a good law school? A. I think it is difficult to run a 
good law school as it should be run—and in all of these 
problems they are questions of degree; there is no question 
of complete black or white—I would hate to be connected 
with a law school that had less than two hundred students.

Q. Then any law school that has less than two hundred 
students, in your opinion, cannot be a good law school? A. 
It couldn’t be as good as it should be. I am perfectly aware

Ervin N. Griswold—-for Plaintiffs—Cross



235

of the fact that Wake Forest College School of Law, which 
has an excellent reputation, has now, and I believe always 
has had, a smaller number of students than that, indeed 
considerably smaller, and I would say on that that I think 
it is a result probably of two things: that they have done 
the job despite the smallness of size; and the fact that it 
is a Baptist school and the larger part of the people of 
North Carolina are Baptists and a lot of the able and ex­
cellent young men of North Carolina went to the Wake 
Forest School of Law, and you can make up, to some ex­
tent—

(544) The Court: Did you know that the Uni­
versity of North Carolina Law School’s enrollment 
was not over a hundred and twenty-five before the 
war?

The Witness: Before the first war?
The Court: No, before the last war.
The Witness: Its total enrollment, I believe,

was more than a hundred and twenty-five.

Q. (By Mr. McLendon) So there is an illustration of 
what I was asking you a while ago on reputation and char­
acter getting confused. It had the reputation of being a 
big school, but its character, if you looked into it, was that 
it was a small school. I would call a school of two hundred 
a small school.

Q. How did you get the impression that they had more 
than two hundred students? A. I had the impression it 
had about two hundred students, more or less, but I 
wouldn’t say that made it a big school.

Q. Do you know that prior to this last war Duke Uni­
versity Law School didn’t have two hundred students? A. 
I understood it had close to two hundred students.

Q. If it had less than two hundred students, then you

Ervin N. Griswold—for Plaintiffs—Cross



236

would say it wasn’t a good law school? A. I would say to 
the extent it didn’t have two hundred students it would be 
a better law school if it did have.

(545) Q. So the truth about it is you are speaking 
in terms of your ideal as to a law school? A. I am speak­
ing in terms of my experience as a legal instructor and my 
standing or basis as an expert in the field.

Q. I believe you testified that in order to have a good 
law school you had to have a variety of students from vari­
ous groups? A. I think so.

Q. Your personal opinion is that segregation, under 
any circumstances, is bad, is it not? A. If the question 
is a general one, I will answer generally and say “ Yes.”

Q. In other words, according to your conception, you 
could not have a good law school under any circumstances 
if it was segregated? A. As long as you confine that to 
legal education, I will say “ Yes.”

Q. Would you apply that to the segregation of men and 
women? A. No. Men and women both come from all ranks 
of society, social and economic.

Q. How long did it take Harvard University to get to 
the point of admitting women to your Law School? A. 
It took them a hundred and thirty-three years, but they
(546) have done it now.

Q. When did they start? A. Actually they haven’t. 
The first women will come this fall.

Q. The first time women have been admitted is this 
fall? A. Yes. It is under my deanship.

The Court: When did you say you became
Dean?

The Witness: 1946.
The Court: It took you four years to—
The Witness: That was partly because of the

post-war situation, the great flood of veterans. I

Ervin N. Griswold—for Plaintiffs—Cross



237

will say this: that the faculty of the Harvard Law 
School has voted to admit women on several occa­
sions over a period of fifty years, and not until now 
could we get the corporation to approve the recom­
mendation.

Q. (By Mr. McLendon) I suppose it would be accurate 
to say, would it not, Dean, that your whole opinion on this 
business of comparison of law schools is affected by your 
conviction that segregation should be abandoned? A. 
I am human.

Q. I am sure you are; you look to be human. A. I 
have no doubt all of our opinions are affected by our gen­
eral views. As far as legal education is concerned; it seems 
to me to be independent of that opinion; it seems to me to 
to be (547) beyond the realm of opinion that there can’t 
be equality of legal education in a segregated system.

Q. Of course you are quite aware of the fact that your 
well-known views and opposition to segregation account for 
your presence here as a witness and for your presence as a 
witness in the Sipuel case? A. As far as I know, I didn’t 
have any well-known views before the Sipuel case. I had 
never spoken or appeared in any way on this matter. I 
was asked, because I was Dean of the Harvard Law School, 
to appear, and I did appear; I was asked to come here 
today, and I am here today.

Q. When did you formulate the conclusion that segre­
gation should be abandoned? A. In legal education?

Q. Yes. A. I couldn’t say when.
Q. WTas it before you testified in the Sipuel case? A. 

Speaking in general terms, and without respect to the facts 
of a particular case, I suppose that at least from the time 
I became a member, or had been a faculty member, the con­
clusion seemed to me to follow that there couldn’t be equal­
ity of legal education in a segregated system..

Ervin N. Griswold—for Plaintiffs—Cross



238

Q. You have never taught, even in a summer school or 
as a substitute, in any Southern university or law school? 
(548) A. No.

Q. Have you ever visited one? A. Yes.
Q. Which ones have you visited? A. Well, Tulane. I 

have not visited any in what I would call the near South 
except North Carolina College today. I visited Washing­
ton University, at St. Louis, and Washburn College of Law, 
at Topeka, Kansas, and the University of Kansas, at Kan­
sas City, and the University of Oklahoma. I think that’s 
all. Southern California is southern, but I suppose not for 
this purpose. I have visited law schools there.

Q. Since you mention California, are you familiar with 
the new law school in California? A. I know the Dean of 
the new law school.

Q. Who is the Dean? A. Dale Caughman. I suppose 
you are speaking of the new Law School of the University 
of California at Los Angeles.

Q. Is Dean Pound on the faculty? A. He was a visit­
ing professor last year and this year.

Q. That school just opened last year? A. Yes.
Q. Did it have any reputation before it opened? A. No.
Q. Did it have any character before it opened? (549) 

A. No.
Q. Is that a good law school? A. It looks to me like it 

will probably develop into a good law school—but nobody 
is required to go to that law school.

Q. Are you under the impression that anybody is re­
quired to go to this law school in North Carolina? A. If 
he wants to obtain a legal education at public expense, there 
is only one place he can go to at this time. It is my under­
standing that a Negro can only go to the North Carolina 
College for Negroes; in fact, that is the basis of this case.

Q. Aren’t you informed that for many years the State 
of North Carolina has paid the expenses of Negroes desir­

Ervin N. Griswold—for Plaintiffs—Cross



239

ing to go to Harvard or any other school? A. Outside the 
state. I said in this state.

Q. If he went to Wake Forest or Duke University, of 
course he wouldn’t go to State expense; you understand 
that? A. That’s right, I understand that.

The Court: I don’t understand that a law stu­
dent gets free education in either one of those 
schools.

The Witness: N o; he has to pay tuition, but it ’s 
less than he would pay elsewhere.

Q. (By Mr. McLendon) Isn’t it more than he would 
pay at (550) Wake Forest? A. It could be. I don’t 
know the tuition at Wake Forest. I know that if he goes 
to law school here the State will make substantial expendi­
tures on his behalf.

The Court: I notice here in this bulletin of the 
North Carolina College the fees and expenses of stu­
dents in the Law School. The only exception I notice 
there from the cost which a student pays is that one 
who is not a resident of North Carolina has to pay 
an additional fifty-two dollars and a half per sem­
ester. In all other particulars a resident of North 
Carolina pays the same as a non-resident,

The Witness: Apparently.
The Court: Isn’t that your impression?
The Witness: Yes, that is my understanding.
The Court: I don’t know about the Law School 

at the University of North Carolina.
Mr. McLendon: It ’s listed in the record too.
The Court: Is there any difference, except a non­

resident has to pay more tuition?
Mr. McLendon: That’s right, a non-resident

pays more than a resident. The tuition is a hundred

Ervin N. Griswold—for Plaintiffs—Cross



240

and fifty dollars for North. Carolinians, and two- 
sixty, or three-sixty, for non-residents.

The Court: On page 11 of the catalogue it states 
that (551) residents of North Carolina pay a tui­
tion fee per semester of $75.00 and all others have 
to pay $180.00.

Mr. McLendon: That is each semester.

Q. (By Mr. McLendon) Dean, you spoke of the Law 
Review. Did you know that the Law Review published at 
Chapel Hill is available to the students and faculty at North 
Carolina College Law School? A. Oh, yes, but that simply 
highlights the inequality.

Q. Why do you say that? A. The Law Review is at 
Chapel Hill.

Q. Published there. A. It is there. The place where 
the students work on it is at Chapel Hill, the offices of the 
Law Review are at Chapel Hill and the students are at 
Chapel Hill. The students at North Carolina College have 
no opportunity to engage in the type of cooperative work 
which is the heart of law-review work.

Q. Did you hear Professor McCall testify this morning 
he had talked to the students of North Carolina College 
about contributing articles to the Law Review? A. Yes.

Q. And did you hear the evidence yesterday that in the 
past they had contributed articles? A. N o; I wasn’t here 
yesterday and I didn’t hear that, but I understand that.

(552) Q. You say the physical fact that it is published 
at Chapel Hill keeps it from— A. And that that is the 
place where the student editors of the Law Review work 
together-—keeps it from being of any significance.

The Court: Can you give us some idea of the 
percentage of your students at Harvard out of the 
total enrollment which gets to participate in con-

Ervin N. Griswold—for Plaintiffs—Gross



241

tributions to the Harvard Law Review?
The Witness: Something like five percent; not 

nearly enough. Because we know it isn’t enough, 
we have developed various other types of activ­
ities, including what is known as the Basement Law 
Review, in which selected editors of the Law Review 
take another group of about fifty students and work 
with them on similar types of work; and it is per­
fectly clear to me that, through the Law Review, 
the Legal Aid and other activities of that kind which 
we have, the top third of our students get a better 
education than the bottom two-thirds; and that is 
a serious problem which we w7ould like to help.

The Court: Before I forget this, I want to ask 
you is it true that before the war you had the reputa­
tion at Harvard of elimination from your first-year 
students of a certain percentage? You can hear a 
lot of things. I have heard it said that, as a rule, 
you wreeded out a third of your students as of your 
first year up there. I thought I (553) had it on 
pretty good authority.

The Witness: We develop that reputation—
and this, perhaps, is an instance of reputation and 
fact not always being identical. Actually, we never 
eliminated as many as one-third. We did one or 
two years eliminate thirty percent.

The Court: You were striving toward that end, 
though, werent you?

The Witness: No; on the contrary—
The Court: The reason I am asking you, I hap­

pened to hold court in New York City along in the 
thirties when many lawyers had to quit the pro­
fession and drive taxicabs in New York City, and 
my conversation was with members of the Appel­
late Court of New York who were discussing with

Ervin N. Griswold—for Plaintiffs—Cross



me the hard policy they were having to follow of 
flunking law applicants; that many were having 
to be flunked who possessed qualifications to be 
licensed, but something had to be done to prevent 
too many people being admitted to the Bar because 
there wasn’t practice enough to sustain them. And 
it was during that period that I got the information 
that Harvard had adopted a rule of eliminating the 
lower third of its freshman class, or approximately 
that. That is the reason I was asking you that. I 
wanted to know if that was so.

The Witness: Your Honor, until about 1936, I 
think it can be said that the Harvard admission 
system was, deliberately, (554) to take in prac­
tically anyone who wanted to come. We said: You 
can come, take your chances on the basis of the 
first-year examinations deciding whether we can 
keep you. In 1936, after long consideration by the 
faculty, we modified that, and from 1936 until the 
war our failure ratio was about twenty percent. 
Since the close of the war the number of applications 
has greatly increased, and we now have about three 
times as many applications as we can take. That 
gives us an opportunity to make much greater selec­
tion in advance, and for the last two years our 
failure rate at the end of the first year has been 
seven percent, which, as far as I am concerned, is 
as low as it ought to be.

The Court: While we are discussing Harvard, 
you have done your utmost to make the Harvard 
Law School fulfill its mission of becoming an out­
standing, if not the outstanding, law school of the 
United States, haven’t you!

The Witness: We have tried.
The Court: Well, I suppose you would be

Ervin N. Griswold—for Plaintiffs—Gross



243

willing to admit that the school enjoys that reputa­
tion generally. Isn’t that true!

The Witness: I hope so.
The Court: Well, consequently, your Law

School occupies a position somewhat to itself from 
the other law schools throughout the country, 
doesn’t it?

(555) The Witness: Not as much as it did a 
generation or two ago.

The Court: But you have a wider student body, 
a larger number of applicants to select from; you 
have an opportunity to accept the cream of those 
who do apply and reject those who are the less 
promising. Consequently you have the opportunity 
to develop the most outstanding men, based on their 
accomplishments at the time they apply for ad­
mission?

The Witness: We are very fortunate to have
an excellent student body.

The Court: In your opinion, is there any other 
law school in America that is the equal of Harvard?

The Witness: No. I don’t say that with any 
particular credit to myself. My predecessor did a 
very excellent job, and we are trying to carry on 
the job they did.

The Court: I want to ask you this: What law 
school, in your opinion, is the closest approximation 
in equality to your law school?

The Witness: I think I would say Columbia
University Law School.

The Court: And then the next? I don’t want
to get you in Dutch.

The Witness: I would name a group next.
The Court: What is that?
(556) The Witness: Oh, there would be several:

Ervin N. Griswold-—for Plaintiffs—Cross



244

Michigan, and Chicago, and California, and Stan­
ford, Cornell.

The Court: Would not Yale come in there!
The Witness: Well, Yale is different. If the

counsellor is worried about my social engineering, 
he would be more worried about Yale’s. Yale is 
usually put as the example of a small law school, 
but it has four hundred and fifty students.

The Court: Now, then, let’s drop back to the
schools you have enumerated and in the order that 
you did enumerate them. Is it correct to say that 
differences exist between Harvard and any one of 
those schools!

The Witness: Oh, of course.
The Court: And that differences exist between 

any one of them and the others?
The Witness: Certainly.
The Court: But does the fact that there are

differences that exist between them make any 
essential difference as to the equality of opportunity 
that is afforded?

The Witness: Well, I think it does, yes.
The Court: In other words, you come back to 

this final analysis, that the opportunity is greater 
at Harvard than at any of them, isn’t it?

(557) The Witness: We are talking about very 
slight differences of degree and, recognizing that, 
my answer to your question would be, to the best of 
my ability, yes.

The Court: Well, all the institutions you have 
mentioned except Michigan and California were pri­
vately-owned institutions, weren’t they? Wasn’t 
Michigan the only school supported by state taxa­
tion?

The Witness: And California. Well, I would put

Ervin N. Griswold—for Plaintiffs—Cross



the University of Pennsylvania in that gronp. If I 
may, I will go back and add it to the list. The Uni­
versity of Pennsylvania is a peculiar combination of 
private and public. Cornell also is, I think, to some 
extent a State university.

The Court: I believe you gave us the number of 
students at Harvard, didn’t you?

The Witness: Fifteen hundred and thirty, or
thirty-one, this past year.

The Court: And they are not confined even to 
residents of the United States, are they!

The Witness: We had twenty-six foreign coun­
tries, I believe, represented this last year. Most of 
those, however, are graduate students, not regular 
A.B. students.

The Court: Do you happen to know how many 
different races are represented there?

The Witness: You will have to tell me—you will 
have (558) to enumerate-—-

The Court: I wouldn’t undertake to do that.
The Witness: There were Negroes and Orientals 

and white persons, and at least one or two from 
Egypt and Saudi Arabia.

The Court: Can you tell me approximately how 
many you have there from the United States ?

The Witness: Of the 1,531, I suppose 1,490 were 
from the United States.

The Court: Do you have any Indians there ?
The Witness: N o; and as far as I know we never 

have had an Indian student. We would take one if 
he applied and was qualified. By Indian you mean 
American Indian?

The Court: Oh, yes.
The Witness: Since the war we have had Indians 

from India,

Ervin N. Griswold—for Plaintiffs—Cross



The Court: Do you know how many Negroes
were included in the 1,531 ?

The Witness: No, I can’t tell you exactly.
The Court: Could you approximate that?
The Witness: It would be my best judgment that 

it was somewhere from ten to fifteen or sixteen.
The Court: Do you know what is the largest

number you have ever had ?
(559) The Witness: No.
The Court: You do not exclude them on account 

of color?
The Witness: Not at all.
The Court: And there has been no rule, as far 

as you know, all during this period of time that you 
have been identified with Harvard where they have 
been excluded on account of race?

The Witness: No, they never have been. 
v The Court: And ten or fifteen is the largest num­
ber of them you have known of attending ?

The Witness: I t ’s hard for me to answer, your 
Honor, because we don’t tabulate, don’t keep ac­
count.

The Court: Did any of them attend when you 
were there?

The Witness: Yes. Judge Hastie was a student 
when I was at the Law School.

The Court: Were you acquainted with him there?
The Witness: Yes, I was.
The Court: Do you remember any other one?
The Witness: Not at that time. I have known 

several since.
The Court: I want to ask you this: Didn’t you 

say you were a native of Ohio?
The Witness: Yes.
The Court; What part ?

Ervin N. Griswold—for Plaintiffs—Cross



Ervin N. Griswold—for Plaintiffs—Cross

(560) The Witness: I was born in East Cleve­
land, Ohio.

The Court: And I think I heard you say that it 
was your intention all the time to practice law at 
Cleveland?

The Witness: I always assumed I was going to 
spend my life practicing law in Cleveland, and I 
sometimes regret that I haven’t.

The Court: You attended college, you say, at 
Oberlin?

The Witness: Yes, your Honor.
The Court: Where is it located?
The Witness: Thirty-five miles southwest of 

Cleveland.
The Court: Did you get your A.B. degree there?
The Witness: Yes, your Honor.
The Court: Where did you get your LL.B. de­

gree ?
The Witness: At Harvard .Law School.
The Court: What were your reasons for going 

to Harvard?
The Witness: Well, my father had been a farm 

boy, with no economic means at all, who had taught 
school for several years before going to college to 
get enough money to go to college. He had then 
worked liis way through college and worked his way 
through law school. He attended the same law school 
that Dean Turner went to, the Law School of West­
ern Reserve University, in Cleveland. He was ad­
mitted to practice in Ohio in 1901 and is still prac­
ticing in Cleveland—

The Court: I assume there is no segregation of 
the races (561) in any of these schools you have 
mentioned?

The Witness: No. I think I went to Harvard



Law School largely because it was always his ambi­
tion that his son should do what he hadn’t been able 
to do, but once it was determined in my mind I would 
study law, there never was much doubt where that 
would be; it would be at Harvard.

The Court: There wasn’t any doubt in your
mind where you would locate?

The Witness: No. I always thought I would
practice law in Cleveland.

The Court: Do you recall what the population 
of Cleveland was in 1940?

The Witness: The population of the city proper 
was just under nine hundred thousand; the metro­
politan area was around a million three or four hun­
dred thousand.

The Court: Do you happen to know anything
about where your Harvard graduates locate?

The Witness: Yes, they locate in every state in 
the country; four or five hundred in Ohio.

The Court: By reason of their superior oppor­
tunities, they usually enjoy a superior opportunity 
in getting a place to practice, don’t they?

The Witness: Well, some do and some don’t. I 
wish they all did.

(562) The Court: Isn’t it a fact that, generally 
speaking, Harvard graduates stand a better chance in 
a big city than one from a school not so well known?

The Witness: Well, I am not sure that it is true, 
if you take into account the number of Harvard 
graduates. In other words, I have known of many 
students from other schools in other places who did 
very well.

The Court: Did you find at Harvard when you 
were a student any tendency on the part, of the stu-

Ervin N. Griswold—for Plaintiffs—Cross



249

dents, apparently, to assemble by virtue of tastes and 
interests into different groups!

The Witness: A  slight tendency, yes, but not a 
very great one.

The Court: If you didn’t have much money to 
spend you didn’t get much chance to associate with 
the fellow who had plenty of it, did you—or I didn’t 
at the school I went to.

The Witness: Well, I didn’t have much money 
to spend, and I didn’t know many who did have much 
money to spend, but the choice was mutual. I had 
no particular desire to move in a group that spent 
money.

The Court: I found it that way. There were 
two groups even in the little school I attended: one 
group who had plenty and could spend it freely, and 
the other group who had a hard time to stay there. 
There wasn’t much community of exchange (563) 
of ideas between the two groups.

The Witness: We certainly have both kinds, but 
there’s not as much barrier between the groups as 
you would expect there would be, and the barrier has 
tended to become less in the last twenty-five years.

The Court: Let’s come to this immediate prob­
lem that we have before us. You have been discuss­
ing the interchange of ideas and opportunities af­
forded the Negroes at the North Carolina College 
here in Durham as compared to those over at the 
University of North Carolina. One of the witnesses 
here expressed the opinion—I believe it was Dr. 
Nabrit—that if Negroes were admitted to the Law 
School of the University of North Carolina, in his 
opinion, about half of those here at the North Caro­
lina College would go to the University. Am I cor­
rect!

Ervin N. Griswold—for Plaintiffs—Cross



Mr. Nabrit (A previous witness): I said assum­
ing, your Honor, that the Legislature kept it open.

The Court: Here is what I am trying to get at: 
If you assume that in the event Negroes are admitted 
to the University of North Carolina Law School and 
that its effect would draw about half the student 
body away from the North Carolina College, taking 
into consideration now, without seeking to justify or 
to excuse or to explain the fact that the University 
of North Carolina happens to be located in North 
Carolina, which (564) is below the Mason and 
Dixon line, and on account of the attitude of a lot of 
people, are you prepared to say or to express your 
opinion that those twelve students who go over to the 
University of North Carolina would have a better 
opportunity of exchange of ideas with the student 
body there than they would have over here?

The Witness: I believe they would.
The Court: On what do you base that?
The Witness: Well, I think that there would in­

evitably be some interchange.
The Court: You are testifying on the basis of the 

way you think it ought to be, aren’t you?
The Witness: N o; I thought I was trying to give 

my opinion as to what I thought it would be. I know 
that at several schools where Negro students have 
been admitted, after a period when they were not, 
that the transition has been made very smoothly and 
has been accepted by the students almost as a matter 
of course.

The Court: Would you give us the concrete evi­
dence of that?

The Witness: The University of Oklahoma I am 
thinking of particularly.

Ervin N. Griswold-—for Plaintiffs—Cross



251

The Court: I thought the University of Okla­
homa excluded them up until the Supreme Court 
made them take them?

(565) The Witness: That is what I am saying. 
I t ’s about two years they have accepted them.

The Court: This last decision from Oklahoma
pointed out they were not even letting a man eat in 
the same cafeteria; that he had to sit at a different 
table, couldn’t sit with the others.

The Witness: That’s right. Those were require­
ments of the University administration and not im­
posed, nor to the extent required, concurred in by 
the students, according to my information.

The Court: I was assuming from the Opinion 
that the plaintiff in that case was the only one who 
was there. Are there more than one over there?

The Witness: It is my understanding that there 
are a considerable number in the University.

The Court: Of Oklahoma!
The Witness: Yes, sir. Mr. Marshall probably 

knows the number. I don’t know. This man was in 
the Department of Education, but there were some 
in the Law School.

The Court: The Opinion that I have was handed 
down on June 5, 1950, in the McLaurin case—and I 
am speaking of the last one that was published.

The Witness: Yes, that is the one. That man, I 
believe, was going to the School of Education.

(566) The Court: Well, it says here in this
Opinion:

“ Appellant is a Negro citizen of Oklahoma. Pos­
sessing a Master’s Degree, he applied for admission 
to the University of Oklahoma in order to pursue 
studies and courses leading to a Doctorate in Educa­
tion. At that time, his application was denied, solely

Ervin N. Griswold—for Plaintiffs—Cross



because of his race. The school authorities were 
required to exclude him by the Oklahoma statutes 
. . . which made it a misdemeanor to maintain or 
operate, teach or attend a school at which both 
whites and Negroes are enrolled or taught.”

Then it says that he filed a complaint, requesting 
injunctive relief, alleging that the action of the school 
authorities and the statutes upon which their action 
was based were unconstitutional and deprived him of 
the equal protection of the laws. And then, citing 
the decision in Missouri in relation to Gaines and 
the Sipuel case, the three-judge Court held that the 
State had a constitutional duty to provide him with 
the education he sought, and so forth.

Now, then, coming on down—I didn’t know it was 
going to take me so long to get to the point I was 
trying to make—the Opinion says:

“ Appellant was thereupon admitted to the Uni­
versity of Oklahoma Graduate School. In apparent 
conformity with (567) the amendment, his admis­
sion was made subject to ‘ such rules and regulations 
as to segregation as the President of the University 
shall consider ’ . . . ”

That law seems to have been passed in 1950 by 
Oklahoma. I mention that to point out that surely 
they couldn’t have been attending there, because the 
date of that statute permitting it is in 1950. They 
speak of the fact that he was required to sit apart 
at a designated desk in an anteroom adjoining the 
classroom, to sit at a designated desk in the library, 
but not to use the desks in the reading room, to sit 
at a designated table and not eat at the same time 
the other students ate in the cafeteria. That is the 
reason I was assuming there were not other Negro 
students there.

Ervin N. Griswold—for Plaintiffs—Cross



The Witness: It is my understanding that your 
assumption is wrong. They are dealing with just 
this case and this one man.

The Court: AVell, do you have information upon 
which you rely that other Negroes do attend the 
school at Oklahoma?

The Witness: Yes, I do. I believe Mr. Marshall 
can give you the exact facts.

The Court: What are they, if you know?
Mr. Marshall: If your Honor please, I do know. 

At the retrial of the Sipuel case there were three 
other cases in the (568) local District Court, State, 
and one of those cases was G. W. McLaurin. We with­
drew the McLaurin case and carried that over in the 
Federal Court. McLaurin was admitted after the 
lower Court’s injunction, the three-judge Court, and 
the order that made him segregated in the first in­
stance was an order of the Board of Regents of Higher 
Education, not the statute. Shortly after McLaurin 
was admitted, some nineteen other Negroes were 
admitted to the various graduate schools of the 
University of Oklahoma, and they are there now. 
Last year additional students were admitted to Okla­
homa A. & M. College Graduate School. Miss Sipuel 
was admitted to the Law School last year, and that 
is why we dropped her ease; and she was admitted 
on a non-segregated basis.

The Court: What do you know about what the 
Supreme Court said to the effect that the Oklahoma 
statute was not enacted until 1950 that wiped out 
that segregation?

Mr. Marshall: The original statutes were the
criminal ones. Then the Board of Regents passed 
the order, and in 1950 they passed the statute, but 
the order was what was before the lower Court.

Ervin N. Griswold—for Plaintiffs—Cross



254

The statute was dragged into the case by the other 
side while the case was on appeal to the Supreme 
Court.

The Court: Well, you had a three-judge court 
in the McLaurin case because you sought to declare 
unconstitutional a State statute that prohibited the 
teaching together of the (569) different races, 
made it a crime. Then the Supreme Court calls 
attention to the fact that the law was amended by 
the Oklahoma Legislature in 1950; and here is what 
the amendment says:

“ Provided, that the provisions of this Section 
shall not apply to programs of instruction leading 
to a particular degree given at State owned or oper­
ated colleges or institutions of higher education of 
this State established for and/or used by the white 
race, where such programs of instruction leading to 
a particular degree are not given at colleges or 
institutions of higher education of this State estab­
lished for and/or used by the colored race; provided 
further, that said programs of instruction leading 
to a particular degree shall be given at such colleges 
or institutions of higher education upon a segre­
gated basis. ’ ’

Mr. Marshall: If your Honor please, there were 
Negroes in the Oklahoma school before that statute 
was passed.

The Court: Then the thing that puzzles me is
why were they treating this one man so different 
from anybody else. The Opinion doesn’t mention 
that there was anybody else there.

Mr. Marshall: At the time that case was tried 
there was nobody else there; he was the only one. 
This case was tried away back in 1949, if I remem­
ber—in 1948. It stayed (570) in the Supreme

Ervin N. Griswold—for Plaintiffs—Cross



Court months before they passed on certiorari.
The Court: But after the first appeal and they 

got an injunction, there was another hearing because 
of the treatment they did accord him!

Mr. Marshall: That was less than a month apart.
The Court: There have been witnesses who havê  

expressed the opinion, to this Court in this trial thaf 
if these plaintiffs expect to practice law here in 
North Carolina the chances are that their oppor­
tunities for remueration lie chiefly with members of 
their own race. There has been evidence on the part 
of persons who have had experience holding courts 
in the state, Superior Court judges and a former 
member of the Supreme Court, a member of the Bar 
who has been practicing since 1901 with an extensive 
practice over a considerable portion of the state, to 
the effect that not in a single instance coming to the 
knowledge of any of those witnesses has any white 
person employed a Negro here in this state. I am 
not speaking about whether they should or shouldn t, 
but am speaking about realities.

Would that affect your opinion in any way con­
cerning the question of whether it would be moie 
advantageous for a Negro law student to go to the 
University of North Carolina Law School than to 
North Carolina College, if he expected to (571) 
practice law in North Carolina!

The Witness: The question to which my testi­
mony has been devoted has not been, as I under­
stand it, whether it is more advantageous to go to 
one place or another, but whether the opportunities
in legal education are equal.

The Court: Wouldn’t that have some effect on
the equality of opportunity!

The Witness: That might affect the judgment

255

Ervin- N. Griswold—for Plaintiffs—Cross



256

of the individual in deciding which law school he 
would go to.

The Court: Would it not have some effect in
regard to a correct arrival at an opinion as to equal­
ity of opportunity? In other words, as you have 
pointed out, doesn’t Harvard have some things other 
schools don’t? Aren’t all of them elements to be 
weighed in determining whether the opportunity at 
one place is equal to that at another?

The Witness: Well, your Honor, like all these 
questions, they are very complicated. Let’s accept 
the fact, which may or may not be the case now and 
may or may not continue to be the case for the next 
generation or longer, but let’s take it as a probable 
fact that while persons in this state will not retain 
Negro lawyers. Nevertheless, there may he many 
cases where Negroes will retain Negro lawyers and 
where, for one reason or another, the Negro will 
want to have associated with him a white lawyer. 
That happens constantly. Now the (572) Negro 
lawyer who has gone to the University of North Car­
olina Law School and been associated, thrown, with 
white lawyers and come to form an appraisal of 
their capacity and come to know what they can do, 
may say, this is just the case for John Jones, and 
call him in, and the man who has been to North 
Carolina College would have been deprived of the 
opportunity of forming an appraisal of the members 
of the Bar of his period.

The Court: That’s correct. Now, in weighing
these different factors, would it not be proper to take 
into consideration the advantage that he might get 
by going to the University Law School and weigh 
that in connection with the advantage that he would 
have by attending a school where members of his

Ervin N. Griswold—for Plaintiffs—Cross



own race attend"? For example, there is evidence 
here that there are approximately twelve hundred 
students attending the North Carolina College at 
Durham. There is no evidence to show that any 
Negroes attend any phase of the University of North 
Carolina, do any work over there. Now is it proper 
to consider the advantages that he would have at the 
University by associating with some white folks over 
there and getting their opinions and contacts, and 
exclude the advantages he would have associating 
with members of his own race at North Carolina 
College in the Law School and also in the general 
college student body?

(573) The Witness: Well, in my opinion, your 
Honor, those facts are relevant in terms of advising 
a young man or woman as to where he should go to 
law school, having the opportunity to go to both 
places. In my opinion, they are not relevant in com­
ing to the conclusion as to whether he shall be told: 
If you want to go to law school at public expense in 
this state, you shall go here and nowhere else.

The Court: That brings up another question.
Most states—and I guess North Carolina might be 
included in the number—are somewhat limited in the 
amount of revenues they have to establish schools. 
I myself, am not advertent to all the schools that the 
State maintains, but I do know that there is a college 
at Elizabeth City maintained for Negroes, this col­
lege here at Durham, the A. & T. College at Greens­
boro, and a Teachers’ College at Winston-Salem. 
There are perhaps others; I don’t know.

Then, coming to the colleges that the State main­
tains for the members of the white race, we have 
what is called the Greater University of North Caro­
lina, the principal institution of which—of course,

Ervin N. Griswold—for Plaintiff's—Cross



258

the other members wouldn’t agree it is the principal 
institution, but I am speaking of Chapel Hill as being 
the location of the main University, State College at 
Raleigh another branch of it, and Women’s College 
at Greensboro. Then there is the Eastern Carolina 
Teachers’ (574) College and the Appalachian 
Teachers’ College at Boone, North Carolina, and 
there are perhaps other schools that the State main­
tains. By reason of the heavy tax burden existing in 
North Carolina, like we find in every state in the 
Union, it just doesn’t have money, and none is in 
sight, to maintain everything that everybody would 
like to have. It isn’t a Utopia to which we can reach 
up and get everything we want. One reason for 
maintaining State College, it keeps the University 
of North Carolina from being too large, and one 
reason for having the Women’s College up at Greens­
boro is to provide an opportunity up there for a dif­
ferent group, and so far these institutions, located in 
different sections of the state, serve a very convenient 
purpose, to the advantages of the students them­
selves.

North Carolina here has undertaken to take over 
a school that Dr. Shepard founded here in Durham 
for the Negroes. You are not unaware of the fact 
that here in North Carolina, as in other states, they 
adhere to the policy of segregation; and it is not 
merely a question of law; it is sort of imbedded in a 
lot of people; it ’s a social condition it ’s hard to put 
your finger on. But in 1923 the Legislature comes 
along and takes over this institution that Dr. Shepard 
founded, and then in 1925 it makes it a college, and 
from year to year it has grown, from a student body 
of a hundred until now it is over (575) twelve 
hundred, and the Law School, established in 1939,

Ervin N. Griswold—for Plaintiffs—Cross



according to the testimony, now has an enrollment of 
twenty-eight.

Now there are several things to consider here. 
If, as one witness expressed it, the privilege of at­
tending the University of North Carolina is to be 
accorded those who want to go—and, looking at it 
from one standpoint, there isn’t any answer to it if 
you accept the premise that every taxpayer is en­
titled to equal participation in the use of tax funds 
and the enjoyment of the privileges accorded citizens 
by that method—yet you come to this proposition: 
that if these plaintiffs can go there the inescapable 
effect is to destroy this school. If twenty-eight is 
too small a number for a law school, then fourteen 
would be much worse.

The Witness: I agree with that, your Honor. On 
the other hand, I think that one of the things that 
can be done—and I don’t minimize the difficulties and 
financial problems, but frankly I think it ’s a great 
shock that there are only twenty-eight Negroes in the 
state of North Carolina going to a public law school. 
What you need to do is increase the educational and 
economic opportunities for Negroes in North Caro­
lina, and there will be more.

The Court: According to the catalogue, there
are only eleven of the twenty-eight who are from 
North Carolina.

(576) The Witness: Twelve, I think, your
Honor. The dfficulty is the low level of educational 
and economic opportunities for Negroes in the state.

The Court: Well, that same thing is true of
North Carolina for the whites. In my day wre didn’t 
have a State-supported school that prepared any­
body for college. There were just sixteen little in­

Ervin N. Griswold—for Plaintiffs—Cross



2 6 0

stitutions scattered over North Carolina where a 
white boy could prepare for college.

The Witness: There has been great improve­
ment in the last few generations.

The Court: Up until the thirties, each county in 
North Carolina had to provide its own revenue to 
run its own public schools. Forsyth and Durham 
and counties like that got by with 30 cents on the 
hundred dollars, and other counties had to pay a 
dollar. I happen to remember in 1905, the year I 
finished prep school, I was given the privilege of 
teaching school in Guilford County, which had the 
highest-paid teachers of any county in North Caro­
lina, and which paid the magnificent sum of fifty 
dollars per month for teaching school, and while I 
was teaching on the hill a man training a kennel of 
dogs for some bird hunters from up north got sev­
enty-five dollars a month.

I am calling your attention here that we can’t, just 
(577) blind our eyes to some facts. Take the 
Women’s College up there at Greensboro, Dr. Charles 
Mclver was President of that institution. In 1905 it 
was struggling for existence, but today it stands out 
as one of the foremost colleges for women in the 
country. Those things just don’t happen overnight, 
but they have been moving along in the last fifty 
years. So it takes a little time to get the momentum.

Take this North Carolina College. According to 
Dr. Elder, when Dr. Shepard turned it over to the 
State it had an enrollment of about a hundred, as I 
recall the testimony, and in twenty-five or thirty 
years that school has gone to twelve hundred.

Talking about the inferior opportunity and de­
velopment of the Negro in North Carolina, I think 
your estimate is wrong there. I think if anybody

Ervin N. Gristvold—for Plaintiffs—Gross



26i

on earth deserves any praise for progress made in 
education it is the Negroes of North Carolina.

The Witness: I agree.
The Court: I am glad to see that, but it just

takes time to work out some of these things.
Now, speaking of an opportunity to select, I rec­

ognize there is a difference between a student select­
ing a law school he will attend and one which he 
may have a right to attend, and, (578) if I under­
stand you, what you speak of is that, broadly speak­
ing, the University of North Carolina, for a taxpay­
ing citizen of this state, offers a better educational 
opportunity for a Negro than North Carolina Col­
lege provides!

The Witness: Yes, your Honor.
The Court: And you base that on the fact that 

there is a better faculty, in your judgment, over 
there, with longer experience, and a larger student 
body and, broadly speaking, better facilities!

The Witness: On every point of comparison,
your Honor, in my judgment, the North Carolina 
College, it seems to me, is clearly secondary. I dis­
tinctly did not say second-rate, because that carries 
with it a notion of no good.

The Court: I take it that, as far as North Caro­
lina College is concerned, as far as your knowledge 
and examination of it is concerned, that it is ade­
quate to provide an LL.B degree?

The Witness: To give a respectable legal train­
ing, yes.

The Court: And as it gets larger and these other- 
elements are acquired by experience, it will be bet­
ter, presumably?

The Witness: If it got better, it would be bet­
ter, yes.

Ervin N. Griswold—for Plaintiffs—Cross



The Court: I didn’t say that. It can overcome 
the small number, which you say is a disadvantage, 
and it will have to have time to overcome that small 
number, won’t it!

(579) The Witness: Yes; but it will have to im­
prove its faculty, and, no matter what it did about its 
numbers or faculty, it can’t provide the cross-section 
of the people of North Carolina that the other school 
does.

The Court: If we accept as true the statements 
of the witnesses heretofore examined that it started 
out in 1923 with a student body of less than a hun­
dred and has grown in twenty-five years to over 
twelve hundred, we can’t eliminate the possibility of 
the Law School growing!

The Witness: No; but the problem to these stu­
dents is the way conditions are now.

The Court: If they go out to practice, they will 
go out to practice the way conditions are now?

The Witness: The way they are when they go 
out to practice.

The Court: One is a third-year student. He will 
be admitted next year or the year following. If he 
goes out to earn a livelihood he will have to earn it 
under conditions existing in North Carolina, if he is 
going to practice here—isn’t that right?

The Witness: I assume so.
The Court: In other words, the practice of law 

is a reality; you have got to deal with realities in 
doing it, haven’t you?

(580) The Witness: Yes, sir.
The Court: It doesn’t follow that a man, just 

because he happens to be a graduate of Harvard, is 
going to turn out to be a good lawyer ?

Ervin N. Griswold—for Plaintiffs—Cross



Ervin N. Griswold—for Plaintiffs—Cross

The Witness: Certainly not.
The Court: I am trying to get at something that 

I think is real. I may he in error, and I "want you 
to correct me, because I have respect for your opin­
ion. There was a time I thought a man who hap­
pened to be a graduate of a school, that was suffi­
cient, he had a certificate of success already in his 
hands, but I have found out that is not true.

The Witness: No, that’s not true.
The Court: There are a lot of people who have 

been licensed to practice law by the University of 
North Carolina and by Wake Forest College and by 
Duke University who haven’t made a dollar in the 
practice of law, who have done something else for 
a living, but, assuming a man studies law with the 
expectation of gaining a livelihood from it, doesn’t 
it come down to this—-you said you wanted to be a 
lawyer in Cleveland and that’s the reason you took 
law at Harvard, with the full expectation of prac­
ticing law there, but, notwithstanding expectations, 
you didn’t make it your life work, did you?

The Witness: No, not my life work. I spent 
three months practicing law in Cleveland.

(581) The Court: If a man wants to practice 
law in North Carolina any time in the immediate 
future, is it your opinion he will be better prepared 
if he goes to the University of North Carolina than 
he would if he went to North Carolina College?

The Witness: Oh, yes, surely.
The Court: You still adhere to the opinion that 

you think the contacts there would be worth more to 
him than contacts with his own race at the other 
school?

The Witness: That plus all the other advan­
tages of going to the University of North Carolina.



264

The Court: You still say that, notwithstanding 
the testimony of other witnesses that if he expects 
to make a living practicing law he will have to make 
it from members of his own race.

The Witness: Yes.

Q. (By Mr. McLendon) I notice in the Harvard cata­
logue that you divide the freshman class in groups of 
twenty. A. We divide the first-year class in two ways, into 
four sections, each having about a hundred and thirty-five, 
for their regular classroom work, and then divide the sec­
tions into groups of about eighteen for one class a week.

Q. The catalogue says the first-year class will be di­
vided into groups of not over twenty students! (582) A. 
Yes.

Q. The reason for that is that your classes are gener­
ally so large and you think your students need more per­
sonal attention and you can give it to them by dividing 
them into small groups! A. We think that though large 
classes are in general advantageous for basic instruction, 
that they leave something wanting which can be provided 
by having the men also able to operate in small groups, and 
we endeavor to provide the smaller groups. We have small 
groups in the second year and in the third year have a con­
siderable number of small groups where they do seminar 
and similar types of work.

Q. You use both, the small group and the large class! 
A. Both.

Q. You made some reference earlier to the fact, as I 
recall, that it wasn’t of any great importance that law stu­
dents be prepared to pass the Bar examination! A. Oh, 
no, Counsellor, I didn’t say that at all. I think that a law 
school which can’t get its students through a Bar examina­
tion is necessarily no good. I said that was not the only

Ervin N. Griswold—for Plaintiffs—Cross



265

objective of a law school and that there was more that a 
school ought to do.

Q. Did you know they had a student from Harvard Law 
School who did not pass the Bar examination in North 
Carolina? (583) A. I didn’t know it.

Q. And had to go to North Carolina College before he 
could pass? A. No, I didn’t know it. I am sorry to hear 
it. Our percentage of success in Bar examinations is gen­
erally higher than that of any other school.

Q. Have you kept up with the records of your students 
passing the Bar examination of North Carolina? A. No, 
I have not. I have in a number of other states, but haven’t 
in North Carolina.

Q. You don’t know that the records here from the North 
Carolina Bar Examiners show that quite a substantial num­
ber of Harvard graduates have failed the examination! A. 
No, I haven’t kept track of the records.

The Court: In justice to your school, is it not a 
fact that you teach law generally, and not specifi­
cally with reference to particular states ?

The Witness: We make no effort to teach the 
law of particular states, but our students, if they are 
willing to put in sufficient time to the law of their 
particular states, should be able to pass. We urge 
them not to take the state Bar examination cold, to 
take a cramming course or tutor themselves and 
spend three months at it, and when they will do that 
they usually get through.

(584) Q. (By Mr. McLendon) Some emphasis has been 
placed by counsel for plaintiffs on the fact that no Negro, 
licensed lawyer, has been a member of the North Carolina 
Supreme Court or of our judicial setup. I ask you, after 
all these years of admitting Negroes to Harvard, has any

Ervin N. Griswold—for Plaintiffs—Cross



member of the Negro race been a member of the Massa­
chusetts Supreme Court? A. No, I don’t believe so.

Mr. McLendon: All right.

Redirect examination by Mr. Marshall:
Q. Judge Hastie, what position does he hold? A. A 

Judge of the United States Court of Appeals fur the Third 
Circuit.

Q. He is a graduate of Harvard? A. A  graduate of 
Harvard.

Q. A Negro? A. Yes.
Mr. Marshall: That’s all.
(Witness excused)
The Court: Any further evidence?
Mr. Marshall: Yes, if your Honor please.
The Court: Make this general entry: All exhibits

(585) heretofore identified will be considered as 
offered in evidence, whether formally offered or not, 
for both plaintiffs and defendants.

Mr. Marshall: We have two new exhibits, if your 
Honor please. We have just learned there is no 
picture of the University of North Carolina Law 
School in the record, and we have two pictures.

(Photographs referred to were received in evi­
dence as Plaintiffs’ Exhibits 8 and 9.)

Mr. Marshall: If your Honor please, there has 
been considerable discussion, and I think I can get 
an agreement with the Attorney General on it, as to 
the number of books actually in the library and at the 
North Carolina College, so Dr. Nabrit and some 
others of us went out there last night and, with Dean 
Turner, we counted them, and Dean Turner agreed.

Ervin N. Griswold—for Plaintiffs—Redirect



267

I think there is no question—and if necessary I can 
put witnesses on the stand—that there are 22,413 
volumes in the building, accessible and available, at 
the Durham school; that there are a hundred or so 
books around in places that couldn’t actually be 
counted. So, allowing for a margin of error, we 
would say that there are 23,000 hooks there, and it is 
not 30,000, as has been testified to. I think the At­
torney General agrees with that.

Mr. McLendon: Except there are some others in 
storage ?

(586) Mr. Marshall: Others in storage.
The Court: The remainder of the thirty thou­

sand in storage ?
Mr. Marshall: Yes, that’s right.
Mr. McLendon: Leaving six thousand in storage ?
Mr. Marshall: Seven thousand in storage. I

think that is all.
Mr. McLendon: Will you also stipulate that

Dean Brandis says forty-seven thousand of the sixty- 
four thousand books there are in storage and not 
available?

The Court: Some other witness said two-thirds 
of the books there were in storage and not available.

Mr. McLendon: May I make one correction ? I 
was in error about the Harvard student I asked Dean 
Griswold about. It turns out that particular student 
was from a New York law school. I want to say that 
in fairness to Harvard Law School and Dean Gris­
wold.

(Thereupon, oral arguments were presented, the 
parties were allowed two weeks within which to file 
requests for findings of fact and conclusions of law, 
and the trial was concluded at 6 :50 p.m., Wednesday, 
August 30, 1950.)

Ervin N. Griswold—for Plaintiffs—Redirect



Baer: Various articles on taxation, unlicensed broadcast, 
jurisdiction in divorce, and the Federal Tort Claims 
Act, in the N. C. Law Review, Cornell Law Quarterly, 
and Michigan State Bar Journal.

Brandis: Several pamphlets on State and local taxation in 
North Carolina; various articles on trust problems, taxa­
tion, and civil procedure, in the N. C. Law Review, Law 
and Contemporary Problems, and Popular Government.

Breckenridge: 1935 and 1943 editions of N. C. Workman’s 
Compensation Act (co-author ) ; prepared reports (co-au­
thor) for Congressional committees on regulation and 
taxation of holding companies, and on federal power to 
regulate oil production and marketing; various articles 
on agency, anti-trust law, restraint of trade, and or­
ganization of small business, in the N. C. Law Review, 
Law and Contemporary Problems, Texas Law Review 
and Yale Law Journal.

Coates: Author of A  Century of Legal Education; author 
or editor of numerous publications of the Institute of 
Government; various articles on criminal law and pro­
cedure, standards of the Bar, the State’s legal business 
and problems of local government, in N. C. Law Review, 
N. C. Bar Association Proceedings, and Popular Gov­
ernment.

Dalzell: Articles on duress by economic pressure in N. C. 
Law Review.

Elliott: Chapter 35, Library Resources of University of
North Carolina ; various articles and committee reports 
on the history of the Law Library, the building of law 
libraries, classification and pay plans for law libraries, 
law library standards and other library problems, in the

Plaintiffs’ Exhibit 3 for Purpose of Showing Publica­
tions of Faculty of University of North Carolina

School of Law



269

N. C. Law Revieiv, Law Library Journal, and the Hand­
book of the Association of American Law Schools.

Hanft: Various articles on control of public utilities and 
their rates, utilities commissions as expert courts, group 
life insurance, legal education, adoptions, and (co­
author) licensing statutes, in N. C. Law Review, Law 
and Contemporary Problems, Minnesota Law Review, 
Tale Law Journ-al.

McCall: Report of Commission on Revision of the Laws 
of North Carolina Relating to Estates (co-author); 
various articles on appellate procedure, the family auto­
mobile, the Torrens System, intestate succession, con­
tingent remainders, estates on condition, and the N. C. 
Judicial Conference, in N. C. Law Review and American 
Bar Association Journal.

Van Hecke: N. C. Annotation to Restatement of Contracts 
(in part); chapter on Injunction, Restatement of Torts 
(co-author); Termination Report, Region IV, National 
War Labor Board; Cook’s Cases on Equity (Fouth Edi­
tion) ; Chapter on Establishment of the Bargaining Re­
lation, Cases and Materials on Labor Law (co-author); 
various articles on a wide variety of subjects in N. C. 
Law Review, Chicago Law Review, Cornell Law Quar­
terly, West Virginia Law Review, Wisconsin Law Re­
view, and Yale Law Journal.

Wettach: Editor of A Century of Legal Education; vari­
ous articles on divorce, freedom of the press, newspaper 
libel, corporations as agencies of the recovery program 
(co-author), wrongful death, and North Carolina insur­
ance laws, in N. C. Law Review and Minnesota Law Re­
view,

Plaintiffs’ Exhibit 3 for Purpose of Showing Publications
of Faculty of University of North Carolina

School of Law



270

P ro m in en t  A l u m n i of U niversity  of N orth  C arolina  
L a w  S chool

L isted  in  W h o ’s W ho  in  A merica

Plaintiffs’ Exhibit 6

Circuit Court of Appeals John Johnston Parker 
(A B, LL B, LL D 
University of N. C.) P .1628

Ambassador to Britian, 
Ex-Governor

Oliver Max Gardner P. 751

United States Senator Clyde Roark Hoey P. 978

Chief Justice, N. C. Su­
preme Court

Walter Parker Stacy P .2009

Former Justice, Supreme 
Court

Michael Schenck P .1868

Justice, Supreme Court Maurice Victor Barn­
hill P. 107

Justice, Supreme Court John Wallace Win- 
borne (A B 1906 Ad­
mitted to Bar 1906) P. 2333

Justice, Supreme Court A. A. F. Seawell 
(studied law privately 
and at University of 
N C ) P .1896

Justice, Supreme Court W. A. Devin P. 536

Prominent Attorney, 
Greensboro, N. C.

Lennox Polk McLendon P. 1424



271

Plaintiffs’ Exhibit 6

Prominent Attorney, 
Greensboro, N. C.

Prominent Lawyer, 
Banker

Anbrey Lee Brooks 
(Firm of Brooks, 
Holderness & McLen­
don, Greensboro) P. 243

John Sprunt Hill. 
(1891-92 Student in 
University of N C 
Law School) P. 961

State Attorney General Harry McMullan
(LL B University of 
North Carolina 1905) P. 1427

Ex-Governor J. C. B. Ehringhaus P. 609

N o t e : Justice E. B. Denny of Supreme Court of North 
Carolina studied law privately and Justice S. J. 
Ervin is not listed in Who’s Who in America,



Plaintiffs’ Exhibit 7

SCHEDULE OF ALL NORTH CAROLINA ATTORNEYS LISTED IN 
BIOGRAPHICAL SECTION OF THE 1950 EDITION OF THE M A R ­
T I  N D  A L E -H U B  B E L L  L A W  D I R E C T O R Y  SHOWING SCHOOLS IN 

WHICH THEY RECEIVED THEIR LEGAL EDUCATION

Schools of L egal Education
W a k e U niversity o f  D u k e

N ame___________________________________________ F orest_____ N orth  Carolina U niversity

Johnson , J. Talbot, Aberdeen X
M iller, Garnett Edward |

1 Aberdeen
X
X

Adams, Junius Greene, Jr. | Asheville X

X

A dams, Joel B.
Bernard, Silas G.

P arker, Frank M. 
H arkin s , Herschel S„ 
H arkin s , Thomas J.

V a n  W inkle , Kingsland

Asheville 

Asheville

Asheville
W alton, Kester 
H artshorn, Edwin S., Asheville 
H eazel, Francis J.

R edmond, Anthony
Asheville

H orner, J. M., Asheville 
Jones, G. L.

Asheville
W ard, George H.
Jordan, Jr., John Y., Asheville 
S mathers, J. Bat

X
X

X
X
X

X

Georgetown University Law School 
X

Washington and Lee University

Private study and Asheville University 
Law School 

Columbia University 
X '

X
X

X

M eekins, Wm. C. Harvard Law School
P acker, Loren D. Asheville University of Virginia

Toms, William F. University of Richmond

R oberts, Landon H.
U ssell, Jr., Thomas A., Asheville 
Robert R. W illiams

X
X
X

W illiams, Robert R. Jr. | Asheville X

E lmore, Bruce A. |
W right, George H., Asheville 
R am sey , Jr., Ralph H. |

H ill, Cecil J. |
Brevard

X
Private Study
University of South Carolina 

X



Plaintiffs’ Exhibit 7

S chools of Legal E ducation
Wake University of Duke

Name Forest North Carolina University

A llen, Louis C., Burlington 
Cartes, Thomas C., Burlington 
Cooper, Thomas D.

S anders, Emmerson T. Burlington

Holt, W. Clary 
R obinson, Sam M.

M organ, Thomas G.
Sea well, Herbert F. Jr., 
Spence, Union L.

B oyette, Mosley G. 
Cansler, Edwin T.

Canton

Carthage

Carthage

Charlotte
C ansler, John S.
Carswell, Guy T., Charlotte 
Cochran, Claude A.

Private Study of Law
X
X

X
X

X
X

X

X
X

X
X

X

X

McCleneghan, Frank A. 

L assiter, Jr., Robt

University of Tennessee 

Harvard Law School

M iller, Frank T., Jr. 
Covington, Wm. T.

Charlotte
L obdell, Hugh L.
Currie, E. McArthur, Charlotte 
E aton, Paul B., Charlotte 
Bell, Paul B., _ Charlotte 
F airley, Francis H., Charlotte

Gover, C. Hundley, Charlotte 
H elms, Fred B.

X
X

X
X

Georgetown University 
X
Columbia University and University of 

N. C.
University of Virginia 
X

M ulliss, Wm. F. 

M cM illan , James B.
Charlotte

Harvard University 

Harvard Law School

Johnson , John W. 
H enderson, David E.

Charlotte
H enderson, Charles J.
H ilker, Elmer A., Charlotte 
Jam es, John, Charlotte 
Jones, J. Laurence, Charlotte 
K ennedy, Frank Hunter, Charlotte 
McRae, John A.

Charlotte
McRae, Jr., John A. 
McDougle, Herbert I. 
Ervin, Paul R.

Harvard Law School 
X

X
University of Chicago 
LaSalle Extension University 
University of Maryland 
Harvard University 

X

X
X

X



Plaintiffs’ Exhibit 7

Schools of L egal E ducation 
W a k e  U niversity o f  D u k e

N ame F orest N orth  Carolina U niversity

H orack
Charlotte

X
S nepp, Jr., Frank W Columbia University and Duke University
Parrott, War ley L. New York Law School
R ichards, Channing L. Charlotte George Washington University
S im s , Nathaniel G. X
P harr, Neal Y., Charlotte X
P ierce, F. Grainger Harvard University
B lakeney, Whiteford S.

Charlotte
Harvard University

Sedberry, J. Chesley 

W elling, Richard M.
Charlotte

University of Virginia
S h a w , John D., Charlotte Harvard Law School
S mathers, R. Hoyle X

S mathers, James C. Charlotte X
Carpenter, Lewis H. George Washington University & Nat’l

T aliaferro, Carol D.
Univ Law Sch. 

University of Virginia
Clarkson, Francis 0. X

Grier, Joseph W., Jr.,
Charlotte

Harvard Law School
P arker, Francis I. X
T higpen, Richard E. X

Jen k in s , Arthur M. Charlotte X

E lmore, William E. X
T illett, Chas W. X

Campbell, Hugh B. X

Craighill, James B.
Charlotte

X

R endleman, Johh T. X
W einstein , Maurice A., Charlotte X
W hitlock, Paul C. X

D ockery, Henry C., Charlotte X

M oore, James 0. X
Bost, Jr. Eugene T., Concord X
H artsell, Luther T. X

H artsell, Luther T., Jr. Concord X

H artsell, John S. X
Bryant, Victor S.. Durham X
F uller, Jones X

R eade, Robert P. University of Michigan



Plaintiffs’ Exhibit 7

Schools of Legal Education
Wake University of Duke

N am e  Forest North Carolina University

U mstead, William B, X & X

F uller, F. L., Jr. 
N ewson, James L.

Durham University of Virginia Law School
Syracuse University and Duke University

Gr a h a m , A lex. H., Jr. 
Edwards, Daniel K.

Durham
Sanders, Richard T.
Gantt, Robert M., Durham 
H aywood, Egbert L., Durham 
P atton, James R., Durham 
Sledge, William Whitfield, Durham 
S pears, Marshall T.
H all, Clarence W.
Stubbs, Allston, Durham 
M cM ullan , John B.

Durham
A ydlett, N. Elton 
Clark, J. Bayard

X
Harvard University

Baylor University and Duke University 
Trinity College Law School 
Harvard Law School 
Harvard Law School 

X 
X 
X
X & X 
X

X
X

Clark , Jerome B., Jr. Fayetteville X

Clark, Herman R.
D ye, Robert H., Fayetteville 
L yon, Terry A., Fayetteville 
N ance, James R.

Fayetteville
B arrington, Carl A.
O ates, John A.
Q uillin , George S.
Russ, D. P, Jr.
C herry, R. G.
H ollo well, L. B.
Garland, P. W.
Garland, James 
M ason, George B., Gastonia_ 
W arren, Ernest, R., Gastonia 
L angston, John D.
A llen, William R.,
T aylor, Walter F.
F alk , Herbert S.,
Carruthers, Joseph T. Jr. 
R oth, Charles E.,
Brooks, Aubrey L.
M cLendon, Lennox P.
Brim, Kenneth M.
H olderness, William H. 
Brroks, Thornton Higbie 
P ierce, Jr. Claude C. 
D aniels, G. Neil

Fayetteville

Gastonia

Gastonia

Goldsboro

Greensboro

X
X
X

X
X
X

University of Virginia 
X 
X 
X 
X 
X 
X

University of Virginia

Harvard Law School 
X 
X

Harvard Law School 
X

Harvard Law School

X
X

X

X

XGreensboro



276

Plaintiffs’ Exhibit 7

Schools of L egal Education
Wake University of Duke

Name__________________ _____________  Forest______North Carolina University
M cLendon, Jr. Lennox P  
F razier, C. Clifford 
Frazier, Robert H.
Cannon , J. Archibald, Jr. 
H ines, Charles A.
B oren, Norman A.
Jordan, Welch, Greensboro 
H oyle, Thos C.
H oyle, Thos C., Jr.
H oyle, Lawrence T. 
M orrisette, Jr. Calvin B. 
H udgins, D. E.
A dams, Wm Jackson 
S m it h , Julius C.
W harton, C. R.
N a p p , Armistead W.
M oore, Beverly C.
W right, Luke 
S m it h , McNeill 
P ope, Harrell 
P oteate, Wm. M.
D onnell, J. L.
W harton, Richard L. 
H unter, Bynum 
K ing, Huger S., Greensboro 
M osely, Robert

Hoyt, Bryce R.
Y ork, Wm. M.
Boyd, Charles T.
W arner, Tim G.
James, J. B., Greenville 
Gholson, T. P.

Greensboro

Greensboro

Greensboro

Greensboro

Greensboro

Henderson
G holson, Jr., A. W.
Perry, Bennett H.
K ittrell, R. G. Henderson
K ittrell, R. G., Jr.
Crowell, O. B., Hendersonville 
P rince, L, B., Hendersonville 
W hitmire , R. L. Hendersonville 
P atrick, Bailey
M urphy , Joseph L. Hickory
H arper, F. Gwyn, Jr.
L ovelace, James B., High Point 
H aworth, Horace S.

R eese, Owen 
W arlick, John D.

High Point

Jacksonville
E llis, Albert J. 
A l ie n , Matt H. 
A llen, Reynold T 
L aroque, G. Paul

Kinston

X
X
X
X
X
X and Columbia University 
X & X 

X
X

Private Study 
University of Virginia 

X 
X 

X
X

University of Va., and University of N. C. 
Yale University 
University of Alabama 
Columbia Law School

X
X X
X
Yale University

X
University of South Carolina 

X

Guilford College and Duke University 
Harvard Law School 
Harvard Law School

X
X
X

X
X
X
X

X
University of Virginia 

X
Columbia University 

X
Harvard Law School 
University of Virginia 
University of Michigan

Oak Ridge Institute

X
X
X

X

X



Plaintiffs’ Exhibit 7

Schools of L egal Education
Wake University of Duke

N am e  Forest North Carolina University

Sutton, Fred L.
Greene, George B. (not stated) 
W allace, F. E.
W allace, F. E., Jr, Kinston
W ooten, E. R.
W hitaker, R. A .

Kinston
Jeffkess, A. H.
W hite, Thos. J., Kinston  ̂
M atthew s, John F., Louisburg 
P roctor, Robert W.

Marion
D ameron, Emerson P.
L ove, Walter B.

Monroe
L ove, Walter B., Jr.
Butler, James Edward, Morganton 
Barden, Graham A.
Stith , Laurence A. New Bern
M cCotter, DeWitt C. Jr.
M cK eithen , W. A. Leland, Pinehurst 
A llen, Arch T., Raleigh 
B ickett, William Y.

Ban k s , Thomas A.
Bailey, L. M.
H olding, Clem B,
Bailey, Jr. Ruffin 
Brassfield, Leon S.

M au pin , Armistead Jones 
Broughton, Jr. Melville

T eague, C. Woodrow

Raleigh

Raleigh

Raleigh 

(not stated) 

Raleigh

Johnson, I. Edward 
B u n n , J. W.

A rendell, Banks 
E hringhaus , Jr., J. C. B, 
F letcher, A . J.
H arris, Jr., W. C.

Poe, Charles A.
Joynera, William T., Raleigh 
Powers, Howard, E., Raleigh _ 
H owison, Jr., Robert C., Raleigh 
Joyner, Jr., William T., Raleigh 
L angston, Allen 
L assiter, William C., Raleigh 
M an n in g , John H., Raleigh 
P urrington, Jr., Alfred, Raleigh

Raleigh

Raleigh

Raleigh

Harvard Law School

X
X

X
X

Harvard Law School

X

X
X

X
X
X
X
X

X
X

X
Harvard Law School 

X 
X 
X

X & Columbia University 

George Washington University

X
Asheville University Law School 
X
X and Trinity

X

X
Harvard Law School 

X 
X 
X 
X

X
X

X



Plaintiffs’ Exhibit 7

Schools of Legal Education
W a k e  U niversity o f D u k e

Name F o r es t N orth  Carolina U niversity

Ruark, Robert X
Ruark, Samuel W. Raleigh X X
Moore, Jr., Joseph C. X
Ruffin, Thomas W., Raleigh X
Simms, Robert N.

Raleigh
X

Simms, Robert N., Jr. X
Smith, Willis Trinity College
Leach, Oscar X

A nderson, John H. Jr. X
Raleigh

Dorsett, Jr., James K. X

Smith, Jr., Willis 
Brown, Junius C. 
Allsbrook, Julian R.

X
X

X

Benton, M. Scott Roanoke X
Knott, Jr., James Ed. Rapids X
Jenkins, Kelly, Roanoke Rapids X
Bynum, Fred W.

Rockingham
X

Bynum, Fred W., Jr. Harvard Law School
Leath, Thomas H., Rockingham X
Arrington, Samuel L., Rocky Mount X
Battle, Kemp D. X  & Denver University

W inslow, Francis E. Rocky Mount X

Merrell, Herman S. X
Bunn, James P. X

Rocky Mount
X

X
Bunn, James P., Jr. 
T horp, William L.

Rocky Mount
XT horp, Isaac D.

Hamrick, Fred D., Jr. X
Rutherfordtou

Jones, Woodrow W. X
H amrick, Fred X

Hamrick, J. Nathaniel Rutherfordton X

Truesdale, Sidney L. 
Linn, Stahle

Salisbury
X

X

Shuford, W. T. Harvard Law School
W oodson, Walter H. X



279

Plaintiffs’ Exhibit 7

N ame____________________

W oodson, Jr., Walter H.

W oodson, James L. 
Gavin , E. L.

Jackson, H. M.

Gavin , H. W.

| Salisbury

Sail ford

Gavin , R. L. 
P ittm an , J. C. Sanford
Staton, Wm. Wayne
M cSw a in , Peyton, Shelby
N ewton, D. Z., Shelby
Pollock, R. F. Hoke, Southern Pines
Foun tain , Leggett
P h ilips , H. H.
P hilips, H. H., Jr.
Bellam y , Emmett H.
D avis, Thomas W., Wilmington
James, Murray G. Wilmington
Jam es, Joshua S. I
N e w m a n , Harriss, Wilmington 
Poisson, Louis J.

Campbell, Wm. B.

M arshall, Alan A.

Poisson, Jr., Louis J.
R ountree, Jr., George, Wilmington

Wilmington

Gardner, Wade A.
Conner, Henry Groves, III Wilson

Lee, Cyrus F. 
L amb , Luke
L amb , Vada W. 
L ucas, William A.

Wilson

R and, Oliver G.
R ose, Z. Hardy 
Shapre, W. D. P., Jr.

Wilson

Wilson
P ittm an , Walter J.
Boyer, William H., Winston-Salem 
Jen kin s , F. Gaither, Winston-Salem 
R am say , Kerr Craige

Schools of L egal Education
Wake University of Duke
Forest North Carolina University

X

University of Virginia
X

X
X

X
X

X
X
X

X
X

X
X

Columbia University 
X

Private Tutor
X
X
X

X

X

X
Harvard Law School

X
X

X
X

X
Trinity College & X 

X

Washington & Lee University 
Plarvard University 

X



2 8 0

Plaintiffs’ Exhibit 7

N ame

S chools of Legal E ducation 
W a k e  U niversity o f  D u k e  

F orest N orth  Carolina U niversity

Brawley, Robert Vance Harvard Law School
Winston-Salem

Craige, Archibald Yale University

K luttz, Wm. Clarence Yale University
D eal, Roy L. George Washington University

Winston-Salem
H utchins, Fred S. Wake Forest College

H atfield, Weston P. Harvard University
M cL e n n an , Dallace, Winston-Salem University of North Carolina
P arker, H. Bryce X

Winston-Salem
L ucas, Philip E. X
R atcliff, H. M. X

V au gh n , Robert C. X
Winston-Salem

F errell, W. L. X

Carter, Thomas Dale University of Virginia
W omble, B, S. X

Carlyle, Irving E. University of Virginia
M artin , Linville K. X

Sandridge, W. Pendleton University of Virginia
Winston-Salem

W omble, William F. X

R ice, Leon L., Jr. X

W omble, Calder W . X
Total for Wake Forest College Law School 44

Total for University of North Carolina Law School 

Total for Duke University

166

37



Opinion of Hayes, D, J.

Attorneys for Plaintiffs;
0 . 0 .  P earson , Durham, N. C.
S pott-swoood W. R obinson , III, Richmond, Ya.
R obert L. C arter, New York, New York.
T h u r g o o d  M a r s h a l l ., New York, New York.

Attorneys for Defendants;
H arry M cM ttllan, Attorney General, Raleigh, N. C. 
R a lph  M oody, Assistant Attorney General, Raleigh, 

N. C.
W. F. B r i n k l e y , Attorney General’s Office, Raleigh, 

N. C.
W. B. TJm s t e a d , Durham, N. C.
L. P. M cL endon , Greensboro, N. C.
J. C. B. E h r in g h au s , J r., Raleigh, N. C.

H ayes, District Judge:
This action was originally commenced by Harold T. 

Epps and Robert Davis Glass seeking an injunction against 
defendants for refusing to admit them to the University 
of North Carolina Law School because of their race and 
color. During the pendency of the action Floyd B. McKis- 
sick, Solomon Revis, Harvey Beech, Walter Nevin, Perry 
V. Gilliard and James Lassiter were permitted to intervene 
as parties plaintiff and when the case was called for trial 
J. Kenneth Lee was likewise permitted to intervene. How­
ever, Epps has graduated from the School of Law from the 
North Carolina College at Durham and therefore was 
permitted to withdraw from the case at his request and 
intervenors Robert Glass, Harvey Beech, Walter Nevin 
and Perry B. Giliard were also permitted to withdraw. 
The remaining intervenors, McKissick, Revis, Lassiter and 
Lee possess the requisite academic requirements for ad­



Opinion of Hayes, D. J.

mission to the law school at the University of North Caro­
lina where they applied for admission and were refused 
by reason of their race and color and for the reason that 
North Carolina had provided a law school for Negroes at 
the North Carolina College where they had applied and 
had been admitted as law students. They are citizens and 
residents of the state and are prosecuting this action as 
a Class action in their behalf and others similarly situated.

The law school of the University of North Carolina 
was established by the state as such about the year 1900 
and since that time has continued in operation. Its enroll­
ment reached about sixty-five before World War II and 
during the war period its enrollment got down to thirteen 
with a faculty of four. Its enrollment at the time of the 
trial was two hundred eighty with a faculty of ten pro­
fessors, including the Dean.

The law school of North Carolina College for Negroes 
at Durham was established under the authority of Chapter 
65 of the Public Laws of 1939, General Statutes 116-100, 
and was set up by the then Dean of the University Law 
School. The curricula, teaching methods and facilities 
were patterned after those at the University and the orig­
inal faculty was composed of the professors from the 
University and the Duke University Law Schools. In 1941 
the present Dean was employed, first as a teacher and 
Assistant Dean and was made full time Dean in 1945 and 
a well qualified Negro faculty was secured with the excep­
tion of Professor McCall of the law faculty of the Univer­
sity and Professor Bryson of the Duke University Law 
School both of whom are part time teachers. The enroll­
ment at the College Law School during the past year was 
twenty-eight students.

The present facilities of the two law schools, in the 
way of housing, are inadequate but funds have been ap­



Opinion of Hayes, D. J.

propriated and plans are being executed for radical changes 
at both institutions. At the University Law School an 
addition is being made to its present law building, while 
at the College Law School the present library building is 
being converted into a law building. When these changes 
are completed during the year the housing facilities at each 
of the institutions will be substantially equal for the num­
ber of students likely to attend the institutions. So far as 
the present housing facilities are concerned the law building 
at the University is severely over-crowded and in some in­
stances the class enrollment is as high as one hundred and 
twenty. At the College Law School class rooms are large 
enough to accommodate far more students than the school 
has, although the law building is a wooden structure.

While the library at the University Law School contains 
approximately 64,000 volumes, two-thirds of these are 
crated up and not available for use. Many of them are 
duplicate sets. There are 17 complete sets of North Caro­
lina Reports, not to mention the broken sets. The library 
at the College School contains 30,000 volumes and contains 
a variety of books which makes it a first rate library.

The University Law School has a Law Review and a 
Chapter of the Order of The Coif; the College Law School 
has neither. Both institutions confer the LLB degree but 
the University Law School also confers the S.J.D. degree. 
The Law School at the University of North Carolina is 
approved by the American Bar Association and the Asso­
ciation of American Law Schools; the College Law School 
is approved by the American Bar Association and has filed 
its application for the admission to the Association of 
American Law Schools; the investigation has been made, 
the requirements have been met and approval will likely 
be given at the next meeting of its authorities. Both Law 
Schools are approved by the North Carolina Board of Ex­
aminers.



284

The plaintiffs virtually concede that the College Law 
School is adequate to afford the plaintiffs legal training; 
to qualify them to pass the North Carolina Board of Bar 
Examiners and to practice law but it is their contention 
that the University Law School is superior in its facilities 
and in the opportunities for a legal education provided for 
white students to the facilities and opportunities afforded 
at the College Law School.

The inferiorities were testified to by the Bean of the 
Harvard Law School, a Professor from the Chicago Uni­
versity and a Professor from Howard University at Wash­
ington, D. C. The equality of opportunity for a legal edu­
cation was testified to by Mr. Harvey, Counsel for the 
Section of the American Bar Association on Legal Educa­
tion who was Dean of Temple University Law School for 
approximately seventeen years and of the Law School of 
the University of Oklahoma until he entered the practice of 
law; by ex-Judge Spears and former Professor of Duke 
University Law School; Dr. Lake and Professor Soule of 
the Wake Forest Law School; ex-Justice of the Supreme 
Court Varsar and President of the Board of Bar Exam­
iners since 1933 and other members of the bar.

There are certain differences of facilities existing at 
the University Law School not present at the College Law 
School but such disparities as do exist are either over-come 
or equalized by advantages which the plaintiffs would enjoy 
at the College Law School. North Carolina College was 
taken over from Dr. Shepard in 1925 at which time it was 
made a state normal with an enrollment of one hundred as 
late as 1926 but its growth has been remarkable and its 
enrollment last year was 1300. It is open to boys and 
girls and is a member of recognized Associations of Col­
leges and Universities. The legislature of North Carolina 
at its last session appropriated for buildings and improve-

Opinion of Hayes, D. J.



Opinion of Hayes, D. J.

ments on the campus in excess of $4,000,000 and its appro­
priation for its annual operating budget is in excess of 
$1,000,000.

The evidence disclosed that the Negro lawyers of the 
state derive their practice from members of their race and 
there was no evidence to show that any member of their 
race ever represented a white client. In the opinion of 
some of the witnesses the advantages which the plaintiffs 
would derive from attending the College Law School, by 
reason of their contacts and acquaintances of the members 
of their race attending the college from all parts of the 
state, would far exceed any advantages which might accrue 
to them if they attended the Law School at the University 
of North Carolina. It also appears that they are receiving 
individual attention and instruction as students at the Col­
lege Law School and that it is an efficient Law School, 
staffed by an efficient faculty, with an excellent library and 
that the work of the Law School is not one of anticipation 
but it is securely established and has been in operation for 
ten years.

The situation with regard to legal training offered to 
Negroes in North Carolina is quite different from the condi­
tions which prevail in the Texas case (Sweatt v. Painter, 
339 U. S. 629), the Oklahoma case (Sipuel v. Board of 
Regents, 332 U. S. 631), or the Missouri case (Missouri 
ex rel. Gaines v. Canada, 305 U. S. 337). Following the 
Gaines case the legislature of North Carolina established 
the College School of Law without a law suit or the threat 
of a law suit and it has proceeded with the development 
of the school of law with the fixed purpose to provide equal 
facilities for the Negroes with those furnished to the white 
students at the University of North Carolina.

The'strongest evidence in support of plaintiff’s conten­
tion was the fact that the student body at the College Law



286

School was too small, yet its very capable witness, Dr. 
Nabrit, expressed tbe opinion that if the plaintiffs prevail 
in this action approximately one half of the students at 
tbe College Law School would go to the University of 
North Carolina and the others to the College Law School.

In the trial of this case there were many facts testified 
to by witnesses which were contrary to theories and ex­
pectations. There is no segregation in the law schools of 
New York and Pennsylvania but part of the students at 
the College Law School are from these states, manifestly 
by choice. Twelve of the twenty-eight students are from 
out of North Carolina.

The Dean and the members of the faculty with the ex­
ception of Professor McCall and Professor Bryson, the 
librarian and his assistants are Negroes. One of them is 
a graduate of College Law School. There is ample testi­
mony to show that the faculty is thoroughly capable and 
that the teaching at the institution shows that it keeps pace 
with the work done at the University Law School and the 
other law schools of the state.

Its applicants for admission to the bar are as successful 
in proportion to their number as the success of those from 
the University Law School or the other law schools of the 
state. Although it is stipulated that the population of the 
state is 74% of the white race the evidences disclose 
that this percentage does not tally with the number of 
witnesses and litigants in the Negro race.

There is no evidence before the court to show that a 
Negro lawyer attending the University of North Carolina 
would enjoy a higher standing with the Judges, and law­
yers, and litigants, and jurors and witnesses than he would 
enjoy if he attended the College Law School. I would not 
think that it would make the slightest difference with a

Opinion of Hayes, D. J.



Opinion of Hayes, D. J.

Judge who is fit to sit on the bench, nor should it have any 
appreciable effect on the jurors who are sworn to do their 
duty according to the evidence in the ease.

It is the view of the plaintiff’s expert witnesses that 
there can be no equality of opportunity if segregation 
exists. This opinion is contradicted by the testimony of 
the witnesses for the defendants and the courts throughout 
the country have very generally held that equality of 
opportunity in education can exist where segregation is 
practiced.

In the case of Gong-Lum v. Rice, 275 U. S. 78, a Chinese 
citizen of Mississippi sued to compel the school authorities 
to admit his child to the white school but the law of that 
state required the children of the colored races to attend 
the colored schools and prohibited them from attending the 
white schools. The United States Supreme Court denied 
relief and among other things said: ‘ ‘ The question here is 
whether a Chinese citizen of the United States is denied 
equal protection of the laws where he is classed among 
the colored races and furnished facilities for education 
equal to that offered to all, whether white, brown, yellow 
or black. Were this a new question, it would call for very 
full argument and consideration but we think it is the same 
question which has been many times decided to be within 
the constitutional power of the state legislature to settle 
without intervention of the federal courts under the fed­
eral constitution.”  Segregation is provided for under the 
constitution of North Carolina in relation to its public 
schools. Article 9 Section 2 provides: “ and the children 
of the white race and the children of the colored race shall 
be taught in separate public schools; but there shall be no 
discrimination in favor of or to the prejudice of either

J Jrace.



2 8 8

The Supreme Court of North Carolina has held that 
the legislature has the power to provide for segregation, 
and to prohibit the attendanee of children with any Negro 
blood, however remote, from attending schools for white 
children. Johnson v. Board of Education, 166 N. C. 468. 
Moreover, marriages between white persons and Negroes 
are prohibited by Article 14 Section 8.

The state in providing facilities for higher education 
for its citizens has established a system of colleges for the 
whites and separate colleges for Negroes, the institutions 
for each race being widely distributed over the state for 
the convenience of its citizens. There are five such institu­
tions for Negroes and the legislature in its last session 
appropriated a sum in excess of $10,000,000 for buildings 
at these institutions. The state institutions are established 
and maintained out of the tax, funds of the state. It has 
been a long and strenuous effort to build up sentiment in 
North Carolina for the cultural development of its citizens, 
but progress is being made and in this progress the best 
people of this state have a right to rejoice.

The phenominal growth of North Carolina College over 
a period of twenty-five years demonstrates the rapidity of 
the response by the Negroes to educational opportunities. 
It is likewise commendable on the part of the legislature to 
appropriate funds for permanent buildings at these various 
institutions for the Negroes.

The undertaking on the part of the state of North Caro­
lina to provide legal education for its white citizens makes 
it mandatory for the state to admit Negroes to these insti­
tutions or to provide equal facilities in a separate school 
for Negroes. This has been undertaken by the state in 
the establishment of the law school at North Carolina 
College.

Opinion of Hayes, D. J.



289

Findings of Fact and Gonclm-sions of Law

It would be no substantial advantage to these plaintiffs 
to admit them to the University Law School. The disad­
vantages at the College Law School are more than offset 
by the disadvantages now existing at the University Law 
School, but in a broad sense it seems clear from the evi­
dence in this case that the best interests of the plaintiffs 
will be served by denying the relief sought.

This the 9th day of October, 1950.

(s) J ohnson  J. H ayes, 
United States District Judge.



290

Decree

This cause was heard at a special sitting of the Court 
beginning August 28, 1950, and extending through August 
30, 1950, in the Durham Division, without a Jury, upon a 
prayer by plaintiff for injunctive relief and declaratory 
judgment.

Upon the findings of fact and conclusions of law this 
day entered and upon motion of counsel for the defendants, 
it is ordered, adjudged and decreed to be the judgment of 
this Court that:

1. Plaintiffs herein and persons similarly situated have 
not been discriminated against by the defendants or by the 
State of North Carolina on account of their race and color 
by reason of the provision for them of a separate but sub­
stantially equal opportunity for a legal education at the 
Law School of the North Carolina College at Durham and 
that said plaintiffs and others similarly situated are pro­
vided at said Law School an educational opportunity sub­
stantially equal to that provided for students at the Law 
School of the University of North Carolina.

2. Plaintiffs and other similarly situated have not been 
denied equal protection of the law as guaranteed by the 
Fourteenth Amendment of the Constitution of the United 
States by reason of any policy, custom or usage of the 
defendants or the State of North Carolina, as alleged in 
the pleadings herein.

3. Plaintiffs and others similarly situated are not en­
titled to any injunctive relief as prayed for requiring their 
admission as law students at the Law School of the Uni­
versity of North Carolina.

4. Costs in this action shall be paid by plaintiffs.



291

Decree

It is further o r d e r e d  that this cause shall b e  dismissed 
from the docket.

Done at Greensboro, North Carolina, this 9th day of 
October, 1950.

/ s /  J ohnson J. H ayes 
United States District Judge