Tureaud v. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College Transcript of Record

    TRANSCRIPT OF RECORD

Supreme Court of the United States

OCTOBER TERM, 1953

No.

ALEXANDER P. TUREAUD, JR., A MINOR, BY ALEX­
ANDER P. TUREAUD, SR., HIS FATHER AND 
NEXT FRIEND, PETITIONER,

vs.

BOARD OP SUPERVISORS OF LOUISIANA STATE 
UNIVERSITY AND AGRICULTURAL AND ME­
CHANICAL COLLEGE, ET AL.

Oir PETITION FOE A WEIT OF CEETIOlUKI TO THE UNITED STATES 
COURT OF APPEALS FOE THE FIFTH CmCUIT

FnJEao



SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1953

No.

ALEXANDER P. TUREAUD, JR., A MINOR, BY ALEX­
ANDER P. TUREAUD, SR., HIS FATHER AND 
NEXT FRIEND, PETITIONER,

vs.

BOARD OP SUPERVISORS OF LOUISIANA STATE 
UNIVERSITY AND AGRICULTURAL AND ME­
CHANICAL COLLEGE, ET AL.

ON PETITION FOE A WHIT OF CERTIORABI TO THE UNITED STATES 
COURT OF APPEALS FOR THE FIFTH CIRCUIT

INDEX
Original Print

Record from the United States District Court for the
Eastern District of Louisiana..............................................  1 1

Amended complaint..........................................................  16 1
Return and answer of defendants to notice of applica­

tion for a preliminary injunction..............................  32 13
Motion to dismiss complaint ..........................................  40 19
Opinion, findings of fact and conclusions of law.......... 170 21
Appendix to findings of fact—Analysis re three year 

arts and sciences part of the combination arts and 
sciences and law curriculum offered by Southern
University ......................................................................  176 26

Judgment ..........................................................................  182 31
Motion for new trial..........................................................  184 32
Order denying motion for new trial, etc....................... 189 34

J udd & Dbtweilee (In u ), Printers, Washington, D. C., J an. 27, 1954. 

—2891



i i  IN D EX
Original

Proceedings in the United States Court of Appeals for
the Fifth Circuit................................................................... 221

Opinion, Hutcheson, C. J ..........................................................  221
Dissenting opinion. Rives, J ..................................................... 228
Judgment .................................................. '................................ 234
Clerk’s certificate.............................. (omitted in printing) . . 235
Stipulation as parts of record to be printed..........................  236
Order extending time to file petition for certiorari..............  237

Print

35
35
41
45

46
47



[fols. 1-16]
IN THE UNITED STATES DISTRICT COURT FOR 

THE EASTERN DISTRICT OF LOUISIANA, BATON 
ROUGE DIVISION

Civil Action No. 1238

A lexander P. T ueeaxid, J e., a Minor, by Alexander P. 
Tureaud, Sr., His Father and Next Friend, Plaintiff,

vs.
B oard of S upeevisors of L ouisiana S tate U niversity  and 

A gricultural and M echanical C ollege, e/o J. Stewart 
Slack, Chairman, Board of Supervisors of Louisiana State 
University and Agricultural and Mechanical College, 
Shreveport, Louisiana; Troy H. Middleton, President, 
Louisiana State University, Baton Rouge, Louisiana, and 
John A. Hunter, Registrar, Louisiana State University, 
Baton Rouge, Louisiana, Defendants

A mended C om plaint— Filed August 27, 1953
1. (a) The jurisdiction of this Court is invoked under 

Title 28, United States Code, Section 1331, this being a suit 
which arises under the Constitution and laws of the United 
States, viz., the Fourteenth Amendment to said Constitu­
tion, and Title 8, United States Code, Sections 41 and 43, 
wherein the matter in controversy exceeds, exclusive of 
interest and costs, the sum of $3,000.00.

(b) The jurisdiction of this Court is invoked under Title 
28, United States Code, section 1343. This action is au­
thorized by the Act of April 20, 1871, Chapter 22, section 1, 
17 State. 13 (Title 8, United States Code, section 43), to 
[fob 17] be commenced by any citizen of the United 
States or other person within the jurisdiction thereof to 
redress the deprivation, under color of a state law, statute, 
ordinance, regulation, custom or usage, or rights, privi­
leges and immunities secured by the Constitution and laws 
of the LTnited States, viz, the Fourteenth Amendment to 
the Constitution of the United States, section 1, and by the 
Act of May 31, 1870, Chapter 114, Section 16, etc. provid­
ing for the equal rights of citizens and of all other persons



within the jurisdiction of the United States, as hereinafter 
more fully appears.

(c) Tlie jurisdiction of this Court is also invoked under 
Title 28, United States Code, section 2281. This is an action 
for an interlocutory injunction and a permanent injunction 
restraining the action of officers of the State of Louisiana 
in the enforcement of statutes of the State of Louisiana and 
the execution of and the enforcement of an order made by 
defendant Board of Supervisors of the Louisiana State 
University and Agricultural and Mechanical College, acting 
as an administrative board or commission under statutes of 
such State, as hereinafter more fully appears.

2. Plaintiff further shows that this is a proceeding for a 
declaratory judgment and injunction under Title 28, United 
States Code, Sections 2201 and 2202, for the purpose of de­
termining questions in actual controversy between the par­
ties, to w it: Whether the policy, customs, practice and usage 
of defendants, and each of them, in refusing admission, on 
account of race and color, to plaintiff and other qualified 
Negroes similarly situated, to the Junior Division of the 
Louisiana State University, while admitting white persons 
of equal or less qualifications to said school, is unconstitu­
tional and void as being a denial of the equal protection 
of the laws and due process of law guaranteed under the 
Fourteenth Amendment to the Constitution of the United 
States.

3. Plaintiff is a Negro, a citizen of the United States and 
of the state of Loiiisiana; and is a resident of and domiciled 
[fol. 18] in the city of New Orleans, State of Louisiana. 
Ifiaintiff is 17 years of age; has completed an accredited 
high Scliool course in the Joseph S. Clark High School of 
the City of New Orleans, maintained and operated as a 
part of the public school system, by the Orleans Parish 
School Board. He is a person of good moral character 
and at all times material herein has in all particulars met 
all of the lawful qualifications necessary for admission as a 
student to the Junior Division of the Louisiana State Uni­
versity and Agricultural and Mechanical College in arts 
and sciences and law. He is now, and at all times material 
herein was and has been ready, willing and able to pay all 
lawful charges and tuition requisite to his admission, and



3

is now, and at all times material herein was and lias been, 
ready, willing and able to comply with all lawful rules and 
regulations requisite to his admission therein.

4. Plaintiff brings this action in his own behalf, and on 
behalf of all other Negro citizens of the United States resid­
ing in the State of Louisiana similarly situated and affected 
with reference to the matters here involved. The members 
of this class are so numerous as to make it impracticable 
to bring them all before the Court. There being common 
questions of law and fact and a common relief being sought, 
as will hereinafter more fully appear, this action is brought 
as a class suit pursuant to Rule 23A, of the Federal Rules 
of Civil Procedure.

5. (a) Defendant Board of Supervisors of the Univer­
sity of Louisiana and Agricultural and Mechanical College 
exists pursuant to the Constitution and laws of the State 
of Louisiana as an administrative board or department 
of the State of Louisiana and is discharging essential gov­
ernmental functions (1921 La. Constitution Art. 12 Sec. 
7; La. R. S. 17:1451); it exercises over-all authority with 
reference to the regulation of instruction and admission of 
students to the Louisiana State University and Agricul­
tural and Mechanical College, (La. R. S. 17:1452); it op­
erates as a part of the educational system of the State of 
Louisiana maintained by appropriations from the public 
[fob 19] funds of said State raised by taxation upon 
the citizens and taxpayers of said State, (La. Constitution 
1921 Art. 12 See. 17), and is declared by law to be a body 
corporate (La. R. S. 17 :1451).

(b) Defendant Troy H. Middleton, is the duly appointed, 
qualified and acting President of the Louisiana State Uni­
versity and Agricultural and Mechanical College and as 
such is subject to the authority of defendant Board of Su­
pervisors of Louisiana State University and Agricultural 
and Mechanical College as an immediate agent governing 
and controlling the several colleges, schools, and depart­
ments of the Louisiana State University and Agricultural 
and Mechanical College.

(c) Defendant John A. Hunter, is the duly appointed, 
qualified and acting Registrar of the Louisiana State Uni­
versity and Agricultural and Mechanical College and as 
such is subject to the authority of defendant Board of Su­



pervisors of the Louisiana State University and Agricul­
tural and Mechanical College and defendant Troy H. Mid­
dleton, as an agent governing and controlling the admission 
and acceptance of applicants eligible to enroll therein, in­
cluding plaintiff, whose duties include the passing upon the 
eligibility of applicants who seek to enroll as students 
therein, including plaintiff and those on whose behalf he 
sues.

(d) All of the individual defendants are under the au­
thority, supervision and control of, and act pursuant to, the 
orders, policies, practices, customs and usages of, and es­
tablished by, defendant Board of Supervisors of the Louisi­
ana State University and Agricultural and Mechanical Col­
lege acting as an administrative Board of the State of 
Louisiana.

6. The State of Louisiana has established and as a state 
function maintains and operates an institution known as 
the Louisiana State University and Agricultural and Me­
chanical College (La. R. S. 17:1421), one of the parts or 
divisions whereof is the Junior Division which is organized 
[fob 20] to provide for all high school graduates en­
tering the Unversity, and the aim of which Junior Divi­
sion has been summarized as follows:

(1) to give first year students closer supervision 
then is ordinarily given in senior colleges.

(2) to give students who have not definitely decided 
on future plans a chance to make this decision during 
their first year of college work.

(3) to give students beginning college work the bene­
fit of guidance by people professionally trained to 
operate a guidance program.

(4) to supply the various senior colleges with a 
highly selected group of students fully prepared to 
carry on specialized training necessary for a profession 
and outstanding citizenship.

That in order to pursue a combined curriculum leading to 
the Bachelor of Arts Degree in the College of Arts and 
Sciences, and a Bachelor of Law Degree in the Law School, 
plaintiff is required to enter the Junior Division of the 
University; that the combined courses could be completed



5

by plaintiff in six years. There is no other institution or 
school maintained by the State of Louisiana at which 
plaintiff can obtain the advantages involved in the combina­
tion courses here offered nor combine his college and law 
school work to the same extent and on equal level of scholar­
ship and intensity as in the schools of Louisiana State Uni­
versity and Agricultural and Mechanical College.

7. Article XII, Section 1, of the Constitution of Louisi­
ana, 1921, provides, as follows:

“ Separate free public schools shall be maintained 
for the education of white and colored children between 
the ages of six and eighteen years.”

8. The Louisiana State University and Agricultural and 
Mechanical College was established in the year 1876. 
Throughout the existence of the Louisiana State Univer­
sity and Agricultural and Mechanical College, defendant, 
the Board of Supervisors of the Louisiana State Univer­
sity and Agricultural and Mechanical College, has main­
tained and pursued the uniform policy of restricting ad­
mission to tlie undergraduate department of said institu- 
[fol. 21] tion to white students. Defendant, Board of 
Supervisors of the Louisiana State University and Agricul­
tural and IMechanical College, acting as an administrative 
board or commission of the State of Louisiana under stat­
utes of said State, has made and established an order ex­
cluding, because of their race or color, plaintiff and all other 
Xegroes othenvise qualified, residing in the State of Lou­
isiana, from all colleges, and undergraduate divisions of 
the Louisiana State University and Agricultural and Iffe- 
chanical College.

9. During the period when defendants were receiving 
applications from white persons for admission as students 
to the Louisiana State University and Agricultural and 
IMechanical College, plaintiff, on or about June 5, 1953, 
applied for admission on September 14, 1953 to Louisiana 
State University as a freshman (Junior Division) desir­
ing to pursue the combined liberal arts curriculum in the 
College of Arts and Sciences and law course in the Law 
School under a plan offered to students attending the Uni­
versity. He furnished a transcript of his high school cred­



its, and filed out the customary application giving personal 
data concerning his place and date of birth, parentage, year 
of graduation from high school and courses of study he 
intended to pursue at Louisiana State University. At the 
time of his application, he was possessed of, and still pos­
sesses, all the scholastic, moral and other lawful qualifica­
tions prescribed by the Constitution and laws of the State 
of Louisiana, by the defendants and each of them, and by 
the rules and regulations of the Louisiana State University 
and Agricultural and Mechanical College. He was then, 
and still is, and at all times material hereto has been ready, 
willing and able to pay all lawful, uniform fees and charges, 
and to conform to all lawful uniform rules and regulations 
established by lawful authority for admission as a student 
to the graduate school of the Louisiana State University 
and Agricultural and Mechanical College.
[fol. 22] 10. Acting pursuant to the laws specified in
paragraph 7 hereof and the order specified in paragraph 
 ̂hereof, and in the enforcement of these laws and policies, 

defendant. Board of Supervisors of the Lousiana State 
University and Agricultural and Mechanical College, on 
or about the 1st day of August, 1953 rejected plaintitf’s 
application and refused to admit him to said Junior Divi­
sion on account of his race or color despite the fact that 
plaintiff met all the qualifications requisite to his ad­
mission.

11. Defendants Troy H. Middleton, and John A. Hunter 
refuse to act favorably upon plaintiff’s application and 
will continue to refuse to admit him, upon the ground that 
defendant Board of Supervisors of the Louisiana State 
University and Agricultural and Mechanical College has 
made and established, and enforces, executes and pursues 
an order, policy, practice, custom and usage that qualified 
Negro applicants, because of their race or color, are not 
eligible for admission as students to the undergraduate de­
partments of the Louisiana State University and Agricul­
tural and Mechanical College and on the ground the plain­
tiff’s admission would violate state law.

12. All defendants have pursued, and are pursuing, the 
policy, practice, custom and usage of excluding, because 
of their race or color, plaintiff, and all other Negroes,



similarly situated, from all colleges, and undergraduate 
departments of the Louisiana State University and Agri­
cultural and Mechanical College, pursuant to the laws of 
the State of Louisiana specified in paragraphs 7 and 8 
hereof.

13. Plaintiff is informed and believes, and therefore 
alleges upon information and belief, that but for the laws 
of the State of Louisiana set forth in paragraphs 7 here­
of, defendants would not have established and would not 
be enforcing or executing the order set forth in paragraph 
8 hereof, and would not have pursued and would not be 
pursuing the policy, practice, custom and usage of deny­
ing his admission because of his race and would not have 
[fob 23] deprived and would not continue to deprive 
plaintiff, and other Negroes similarly situated, of his or 
their rights secured by the Constitution and laws of the 
United States, and hereinbefore and hereinafter more fully 
set forth.

14. The action of defendants, and each of them, in deny­
ing plaintiff and all other Negroes similarly situated ad­
mission as students in the Junior Division of the Louisiana 
State University and Agricultural and Mechanical College, 
pursuant to Article XII, section 1 of the Constitution of 
Louisiana (1921) and the order of the Board of Super­
visors of Louisiana State University, has denied, and is 
denying, plaintiff and other Negroes similarly situated, 
because of their race or color, their privileges and im­
munities as citizens of the United States, their liberty and 
property without due process of law, and the equal pro­
tection of the laws, secured by Section 1 of the Fourteenth 
Amendment of the Constitution of the United States, and 
rights secured by section 41 of Title 8 of the United States 
Code.

15. Plaintiff, and other Negroes similarly situated, on 
whose behalf this suit is brought, are suffering irreparable 
injury, and are threatened with irreparable injury in the 
future by reason of the acts of defendants hereinbefore 
set forth. They have no plain, adequate or complete 
remedy to redress the wrongs or illegal and tmconstitu- 
tional acts hereinbefore set forth other than this action 
for an injunction. Any other remedy to which plaintiff.



8

and other Negroes similarly situated, could be remitted 
would be attended by such uncertainties and delays as to 
deny substantial relief, would involve a multiplicity of 
suits and would cause further irreparable injury, damage, 
vexation and inconvenience to plaintiff and other Negroes 
similarly situated.

16. Defendants have denied and will continue to deny, 
plaintiff’s admission as a student to the Junior Division 
of the Louisiana State University and Agiucultural and 
[fob 24] Mechanical College, and enforce and execute, 
and will continue to enforce and execute, against plaintiff 
and other Negroes similarly situated, the order specified 
in paragraph 8 hereof, and the laws of the State specified 
in paragraph 7 hereof and are pusuing against plaintiff 
and other Negroes similarly situated, and will continue to 
pursue, the policy, practice, custom and usage of denying 
their admission to Louisiana State University solely be­
cause of their race and color, and unless this Court issues 
a preliminary injunction the constitutional rights of plain­
tiff and other Negroes similarly situated, as hereinbefore 
set forth, and their right to attend as students the Junior 
Division of the Louisiana State University and Agricul­
tural and ^lechanical College at the beginning of the school 
session on September 14, 1953 will be unprotected and lost.

Wherefore, plaintiff respectfully prays upon the filing of 
this complaint:

1. That this Court immediately convene a Three-Judge 
Court, as required by Title 28, United States Code, sec­
tion 2284.

2. That this Court enter a preliminary- or interlocutory 
injunction restraining defendants, and each of them, their 
successors in office, and their agents and employees, from 
enforcing or executing against plaintiff, or other Negroe< 
similarly situated, the order specified in paragraph S here­
of. upon the ground that said order, as applied to plaintiff, 
or ©rber Negroes sintilarly situated, on whose behalf he

denies them their privileges and iutmutiities a< citi­
zens of the Uttiteei States, their liberty and property Tirttri- 

—'<tess of law. and the equal protection of the law ,̂ 
I’he Fourteenth Amendment of she Consdn-



tion of the United States Section 1, and the rights secured 
by Title 8, United States Code, Section 41.

3. That this Court enter a preliminary or interlocutory 
injunction restraining defendants, and each of them, their 
successors in office, and their agents and employees, from 
all action pursuant to the laws of the State of Louisiana 
[fol. 25] specified in paragraphs 7 hereof which precludes 
the admission of plaintiff, and other Negroes similarly 
situated, to the colleges, and undergraduate divisions or 
departments of the Lousiana State University and Agri­
cultural and Mechanical College, upon the ground that said 
laws, as applied to plaintiff or other Negroes similarly 
situated, on whose behalf he sues, denies them their privi­
leges and immunities as citizens of the United States, their 
liberty and property without due process of law, and the 
equal protection of the laws, secured by the Fourteenth 
Amendment of the Constitution of the United States, sec­
tion 1, and the rights secured by Title 8, United States 
Code, section 41.

3. That this Court enter a preliminary or interlocutory 
injunction restraining defendants, and each of them, their 
successors in office, and their agents and employees, from 
all action pursuant to the laws of the State of Louisiana 
specified in paragraph 7 hereof which precludes the ad­
mission of plaintiff, and other Negroes similarly situated, 
to the colleges, and undergraduate divisions or depart­
ments of the Louisiana State University and Agricultural 
and Mechanical College, upon the ground that said laws, 
as applied to plaintiff, or other Negroes similarly situated, 
on whose behalf he sues, denies them their privileges and
immunities as citizens of the United S tates----- liberty and
property without due process of law, and the equal protection 
of the laws, secured by the Fourteenth Amendment of the 
Constitution of the United States, section 1, and the rights 
secured by Title 8, United States Code, Section 41.

4. That this Court enter a preliminary or interlocutory 
injunction restraining defendants, and each of them, their 
successors in office, and their agents and employees, from 
enforcing, executing or pursuing against plaintiff, or other 
Negroes similarly situated, the policy, practice, custom or 
usage denying admission to the Junior Division of the



10

University to qualified persons solely because of race or 
color, upon the ground that the enforcement, execution 
or pursuance of said policy, practice, custom or usage 
against plaintiff, or other Negroes similarly situated, on 
whose behalf he sues, denies them their privileges and 
immunities as citizens of the United States, their liberty 
and property without due process of law, and the equal 
[fob 26] protection of the laws, secured by the Fourteenth 
Amendment of the Constitution of the United States, sec­
tion 1, and the rights secured by Title 8, United States 
Code, section 41.

5. That this Court enter a preliminary or interlocutory 
injunction restraining defendants, and each of them, their 
successors in office, and their agents and employees, from 
making any distinction, on the basis of race or color, in 
the consideration of plaintiff or any other applicant, for 
admission as a student to any college, school, division or 
department of the Louisiana State University and Agri­
cultural and Mechanical College, upon the ground that any 
such distinction, as made or applied with respect to plain­
tiff or other Negroes similarly situated, on whose behalf 
he sues, denies them their privileges and immunities as 
citizens of the United States, their liberty and property 
without due process of law, and the equal protection of 
the laws, secured by the Fourteenth Amendment of the 
Constitution of the United States, section 1, and the rights 
secured by Title 8, United States Code, section 41.

And plaintiff respectfully prays further that upon a full 
hearing hereof:

6. That this Court enter a permanent injunction restrain­
ing defendants, and each of them, their successors in office, 
and their agents and employees, from enforcing or execut­
ing against plaintiff, or other Negroes similarly situated, 
the order specified in paragraph 8 hereof, and from en­
forcing or executing against plaintiff, or other Negroes 
similarly situated, any other order making any distinction, 
on the basis of race or color, in the consideration of any ap­
plicant for admission as a student to any college, school, 
division or department of the Louisiana State University 
and Agricultural and ^Mechanical College, upon the ground 
that such order, as applied to plaintiff or other Negroes



11

similarly situated, on whose behalf he sues, denies them 
their privileges and immunities as citizens of the United 
States, their liberty and property without due process of 
[fol. 27] law, and the equal protection of the laws, secured 
by the Fourteenth Amendment of the Constitution of the 
United States, section 1, and the rights secured by Title 
8, United States Code, section 41.

7. That this Court enter a permanent injunction restrain­
ing defendants, and each of them, their successors in office, 
and their agents and employees, from all action pursuant 
to the laws of the State of Louisiana specified in paragraph 
7 hereof which preclude the admission of plaintiff, and 
other Negroes similarly situated to the colleges, schools, 
divisions or departments of Louisiana State University 
and Agricultural and Mechanical College, upon the ground 
that said laws, as applied to plaintiff or other Negroes 
similarly situated, on whose behalf he sues, deny them their 
privileges and immunities as citizens of the United States, 
their liberty and property without due process of law, and 
the equal protection of the laws, secured by the Fourteenth 
Amendment of the Constitution of the United States, sec­
tion 1, and the rights secured by Title 8, United States 
Code, section 41.

8. That this Court enter a permanent injunction re­
straining defendants, and each of them, their successors 
in office, and their agents and employees, from enforcing, 
executing or pursuing against plaintiff, or other Negroes 
similarly situated, the policy, practice, custom or usage of 
denying admission to Louisiana State University solely 
because of race and color and from enforcing, executing 
or pursuing against plaintiff, or other Negroes similarly 
situated, any other policy, practice, custom or usage mak­
ing any distinction, on the basis of race or color, in the con­
sideration of any applicant for admission as a student to 
any college, school, division or department of the Louisiana 
State University and Agricultural and Mechanical College 
of Louisiana, upon the ground that the enforcement, execu­
tion or pursuance of said policy, practice, custom or usage 
against plaintiff, or other Negroes similarly situated, on 
whose behalf he sues, denies them their privileges and 
[fol. 28] immunities as citizens of the United States, their



12

liberty and property without due process of law, and the 
equal protection of the laws, secured by the Fourteenth 
Amendment of the Constitution of the United States, sec­
tion 1, and the rights secured by Title 8, United States 
Code, section 41.

9. That this Court enter a permanent injunction re­
straining defendants, and each of them, their successors 
in office, and their agents and employees, from making any 
distinction, on the basis of race or color, in the considera­
tion of plaintiff or any other applicant, for admission as 
a student to any college, school, division or department of 
the Louisiana State University and Agricultural and Me­
chanical College upon the ground that any such distinction, 
as made or applied with respect to plaintiff or other Ne­
groes similarly situated on whose behalf he sues, denies 
them their privileges and immunities as citizens of the 
United States, their liberty and property without due 
process of law, and the equal protection of the laws, se­
cured by the Fourteenth Amendment of the Constitution 
of the United States, section 1, and the rights secured by 
Title 8, United States Code, section 41.

10. That this Court allow plaintiff his costs herein, and 
grant him such further other, additional or alternative re­
lief as may appear to the Court to be equitable and just 
in the premises.

(S.) A. M. Trudeau, Jr. A. P. Tureaud, Sr., 1821 
Orleans Street, New Orleans, Louisiana. Eobert 
L. Carter. Thurgood Marshall, 107 IVest 43rd 
Street, New York, N. Y. Attorneys for Plaintiff.

[fols. 29-31] N otice of A mended C om plaint

Please take notice, that the within is a copy of the 
amended complaint filed in this action as a matter of course, 
pursuant to Eule 15(a), Federal Eules of Civil Procedure, 
on the 27th day of August, 1953.

(S.) A. M. Trudeau, J r. A. P. Tureaud, Sr., 1821 
Orleans Street, New Orleans, Louisiana. Eobert 
L. Carter, Thurgood Marshall, 107 lYest 43rd 
Street. New York, N. Y. Attornevs for Plaintiff.



13

Certificate
I hereby certify that a copy of the above and foregoing 

Amended Complaint has been sei’ved on defendants by 
mailing the same this day, postage prepaid, to Board of 
Supervisors of Louisiana State University and Agricul­
tural and Mechanical College, c/o J. Stewart Slack, Chair­
man, Commercial National Bank Building, Shreveport, 
Louisiana; Troy H. Middleton, President, Louisiana State 
University, Baton Rouge, La.; John A. Hunter, Registrar, 
Louisiana State University, Baton Rouge, Louisiana.
New' Orleans, Louisiana, August 27, 1953. A. P. Tureaud, 
Attorney for Plaintiff.

[fob  32] I n t h e  U nited  S tates D isteict Court 

[Title omitted]

R eturn  and A nsw er  oe D efendants to N otice op A pplica­
tion  FOR A P relim inaey  INJUNCTION— Filed September 
8, 1953.
Defendants, with full reservation of their rights under 

the Motion to Dismiss, make return to the notice of applica­
tion for a preliminary injunction and for each purpose 
answer plaintiff’s original and amended complaints as 
follows:

First Defense
Defendants deny generally and specifically each and 

every allegation contained in the original and amended 
complaints, except as hereinafter specifically admitted.
[fob 33] The allegations of Paragraphs 5, 7, 8, 11 and 12 
of the original and amended complaints are admitted.

The allegations contained in the first sentence of para­
graph 6 are admitted, but the last two sentences thereof 
are denied. Defendants specifically deny that in order to 
pursue a combined curricular leading to the Bachelor of 
Arts Degree in the College of Arts and Sciences, and a 
Bachelor of Law Degree in the Law School, plaintiff is 
required to enter the Junior Division of the Louisiana 
State University. They further deny the allegation that 
there is no other institution or school maintained by the



14

State of Louisiana at which plaintiff can obtain the ad­
vantages involved in the combination courses offered by 
the Louisiana State University, which courses may be com­
pleted by plaintiff in six years. Defendants further deny 
plaintiff’s allegation in the Paragraph 6 to the effect that 
there is no other institution or school maintained by the 
State of Louisiana where he can combine his college and 
law school work to the same extent and on equal level of 
scholarship and intensity as in the schools of Louisiana 
State Lmiversity and Agricultural and ilechanical College.

It is admitted that during the period when defendants 
were receiving applications from students for admission 
to the Louisiana State University, plaintiff on or about 
June 5, 1953, applied for admission to the session of the 
Louisiana State Lmiversity beginning on September 14, 
1953, as a Freshman (Junior Division); that he furnished 
a transcript of his High School credits, and fiUed out the 
customary application, giving personal data concerning his 
place and date of birth, parentage, year of graduation from 
High School, and courses of study he intended to pursue 
[fol. 34] at Louisiana State University as set forth in 
the first two sentences of Paragraph 9 of the complaint. 
In other respects the allegations of said paragraph are 
denied.

The allegations of Paragraph 10 of the complaint are 
admitted, except that defendants aver that plaintiff’s ap­
plication for admission to the Louisiana State University 
was denied on or about the 8th day of August. 1953. and 
defendants refused to admit the plaintiff to the Junior Di­
vision of the I niversity for the reasons hereinafter set forth.

It is admitted that the laws of the State of Louisiana 
set forth in Parasraphs 7 and S of the complaint require 
defendants to reject plaintiff's application for admission to 
the Louisiana State University, hut defendants aver that 
there are other reasons for refusing such application, as 
hereinafter set forth. Defendants specifically deny that 
their action has deprived or will deprive plaintiff and other 
Xesrroes of any risrhts secured to them by the Constitution 
ar.d law< of the United States as allesred in Parasrraph 13 
and in other paragraphs of said complaint.

I* I' adrmtteii that the defendants will continue to denv 
piaintit: s admission as a student to the Junior Division



15

of the Louisiana State University and Agricultural and 
Mechanical College and will continue to enforce and exe­
cute the order specified in Paragraph 8 of the complaint 
and the laws of the State specified in Paragraph 7 thereof.

Second Defense
Because of the history, traditions, customs and usages 

of the people of the State of Louisiana, segregation of 
whites and blacks is necessary in this State to preserve 
and promote friendly relations and mutual understanding 
between white and colored persons. Eesults experienced 
[fob 35] from segregation of the races during the long 
history of the State, the progress of the Negro, absence 
of race riots and social friction between the races proves 
the wdsdom of such practice. In the field of education, ex­
perience has demonstrated that white and Negroes can 
secure better opportunities for education and learning on 
a segregated basis. The State of Louisiana has accord­
ingly spent, and at present is spending, many millions of 
dollars for the establishment of separate schools and col­
leges for the two races. Such expenditures are being 
made for the purpose of providing equal facilities and 
opportunities for all citizens of the State, regardless of 
race or color. The policy of the State in this regard is 
based upon the interpretation given by the Courts and 
Congress to the 13th and 14th Amendments of the Consti­
tution of the United States, and any changes made in such 
interpretations at this time would destroy the value of 
Louisiana’s investment in education, disrupt its school sys­
tem and result only in confusion and ineffectiveness of its 
educational system.

Defendants aver that the Constitution and laws of the 
State of Louisiana require segregation of the white and 
Negro races, and that the State and its agencies are act­
ing pursuant to their police power in excluding Negroes 
from schools reserved for whites and vice versa. In pur­
suance of its police power, the General Assembly of the 
State of Louisiana in the year 1880 passed Act 87 creating 
and establishing Southern University, a university for 
the education of persons of color. Said Act provides that 
the board of trustees of said Southern University shall



16

establish “a faculty of arts and letters, which shall be 
competent to instruct in every branch of a liberal educa­
tion, and under rules of and in concurrence with the board 
of trustees, to graduate students and grant all degrees 
appertaining to letters and arts known to universities and 
colleges in Europe and America, on persons competent and 
deserving the same.” Said Act also provides that “ There 
[fob 36] may be also established by said board of trus­
tees a department of law and medicine.” Pursuant 
to said Act, Southern University has been established and 
operated as a university for the education of Negroes since 
the year 1880 and now has a faculty curriculum, campus, 
buildings and equipment which will afford to plaintiff op­
portunities for higher education in the courses he desires 
to pursue which are equal to or greater than the oppor­
tunities which Avould be afforded to him in the Louisiana 
State University or other colleges reserved for white stu­
dents in Louisiana.

Prior to the year 1946 there was no demand among the 
Negro citizens for the establishment of a law school at 
Soiithern University. In that year demand was made by 
a Negro for such instruction. Immediately the Louisiana 
State Poard of Education, which has jurisdiction over 
Southern University and its board of trustees, authorized 
the establishment of a hona fide law school at Southern 
University and made arrangements for its financing. This 
was done in cooperation with the Board of SupWvisors 
of the Louisiana State X niversity and Agricultural and 
Mechanical College. As a result thereof, the Law School 
at Southern University opened for enrollment of qualified 
students of law in September, 194 (, and is now a provi­
sionally accredited law school.

The said Lâ \ School has an adequate, sufficient and 
competent full time faculty and staff to educate and train 
students of the law to qualify them to practice law in the 
state and federal courts in the State of Louisiana.

Sontb.ern I'niversity is located at Scotlandville. five 
tndes north of Baton Bougt>. and is easilv accessible bv 
rvvad and railroad from the State Capitol and the Louisiana 
fto!. State University and other smions of the State 
of I.outsbHua- iueiuding the City of New Orleans, where 
ptau-.tiff n'sides. Southern University is a staudarvi four



17

year college offering courses of study leading to the A. B., 
B. S., LL. B. Degrees, and is fully accredited as Class “ A ” 
by the Southern Association of Colleges of secondary 
schools and by the Louisiana State Department of Educa­
tion. As a result, its graduates are given full recognition 
by other states having similar standards of those to 
Louisiana. It is also rated as an approved senior college 
by the American Medical Association. Such accreditment 
permits the admission, without examination, of its gradu­
ates to medical schools and law schools, including the Law 
School of the Louisiana State University, and to the 
graduate division of any standard university requiring the 
Bachelors Degree for admission. The plaintiff may, by 
\drtue of a resolution adopted by the Louisiana State Board 
of Education on the 7th day of Augnist, 1953, pursue a 
three year course of study in the Arts and Sciences at 
Southern University and then enter the School of Law at 
the Louisiana State University or any other accredited law 
school and thereby, on successful completion of his courses 
of study, secure the Degrees of Bachelor of Arts, Bachelor 
of Law, within six years, in accordance with his desires.

The Southern University campus, buildings, school 
rooms, library, laboratories and other facilities and equip­
ment at Southern University, the courses of study offered, 
and the faculty provided are adequate, equal and compar­
able to similar advantages offered in similar schools re­
served for whites in the State of Louisiana and to the 
College of Arts and Sciences and the Junior Division 
thereof at the Louisiana State University.

At the present time there are two accredited four year 
colleges in the State which afford adequate and equal op- 
[fol. 38] portunities for Negroes in the field of higher 
education in the Arts and Sciences, to-wit: Southern Uni­
versity, referred to above, and Grambling College.

Grambling College was established at Grambling, in 
Lincoln Parish, Louisiana, in 1901 as a private school, and 
in 1928 was incorporated into the public school system of 
the State of Louisiana under the name “ Louisiana Negro 
Normal and Industrial School.” It is a standard accred­
ited four year college for Negroes only and has been and 
is now being improved in every respect to bring its build­
ings, equipment, faculty and curriculum up to equal par



18

of other comparable white and Negro colleges; has a stu­
dent body in excess of 1200 students, and appropriations 
are being made by the State of Louisiana for its operation 
and maintenance on a high level of efficiency.

Plaintiff can secure at Grambling College adequate and 
equal opportunities for instruction leading to the Bachelor 
of Science Degrees in Elementary and Secondary Educa­
tion at Grambling and the LL. B. Degree at Louisiana 
State University.

For the foregoing reasons, defendants aver that the said 
Southern University and Grambling College both offer to 
Negroes education equivalent to that offered by the State 
to students of other races including that offered by the 
Board of Supervisors of Louisiana State University and 
Agricultural and Mechanical College; that the defendants 
have not violated the Constitution and laws of the United 
States as set forth in the said complaint and that neither 
plaintiff nor others similarly situated have been deprived 
of equal protection of their rights secured by the Consti­
tution and laws of the United States nor their privileges 
and immunities as citizens of the United States, nor their 
[fol. 391 liberty and property without due process of law, 
nor any other right secured by the Constitution or statutes 
of the United States.

Wherefore, defendants pray that after due proceed­
ing had, plaintiff’s demands be rejected and this action 
be dismissed with costs.

(S.) Fred S. LeBIanc, Attorney General of Louisi­
ana. (S.) W. C. Penault, Firs't Assistant Attornev 
General. (S.) W. Scott Wilkinson, Leander H. 
Perez, L. W. Brooks, James E. Fuller, C. V. Porter, 
J. H. Tucker, Jr., Fred Blanche, Arthur O’Quinn’ 
Victor A. Sachse, B. B. Sadler, Jr., Henrv C. 
Sevier, A. J. Shepard, Jr., Grove Stafford, Oliver 
Stockwell, Wood Thompson, J. Clyde Pearce, C. C. 
Bird, Jr., Attorneys for Defendants.

V  * Phillips, 1106 Louisiana
National Bank Building, Baton Rouge, Louisiana; Wilkin­
son, Lewis & Wilkinson, P. 0. Box 1707, Shreveport, Louisi­
ana.



19

[fol. 40] U nited  S tates D istrict Court

[Title omitted]

M otion to D ism iss  A ction—Filed September 8, 1953

Defendants move the Court to dismiss this action on the 
grounds and for the reasons following:

1. Because the plaintiff is incompetent to institute or 
maintain the action or to stand in judgment herein as shown 
by the allegations of plaintiff’s complainf.

2. Because the complaint fails to state a claim upon which 
relief can be granted in a class action such as this.

3. Insofar as it purports to constitute a class action and 
insofar as it seeks injunctive relief against defendants to 
restrain them from precluding the admission of Negro 
citizens of the United States residing in Louisiana, other 
than Alexander P. Tureaud, Jr. but alleged to be similarly 
situated, to the colleges and undergraduate divisions or de­
partments of Louisiana State University and Agricultural 
and Mechanical College (hereinafter referred to as “ Louis­
iana State University’’) on the ground that the alleged 
right sought to be enforced is a personal one and can only 
be enforced if the plaintiff has a personal and present right, 
and on the further ground that the plaintiff has no standing 
to sue for this type of rigid on behalf of any other person 
or class.

4. Insofar as it purports to constitute a class action and 
[fol. 41] insofar as it seeks injunctive relief against de­
fendants to restrain them from precluding the admission 
of other Negro citizens of the United States residing in 
Louisiana and alleged to be similarly situated on tbe ground 
that the admission of any applicant to Louisiana Slate Uni­
versity depends upon such applicant’s presenting satisfac­
tory evidence of various qualifications, including prepara­
tory work and evidence of applicant’s good moral charac­
ter, etc.; that this Court should not grant any injunctive 
relief whatsoever with respect to unnamed parties whose 
qualifications and eligibility for admission to Louisiana 
State University might depend upon the judgment of its 
deans and other faculty members in evaluating the quali­
fications of the individual applicant.



20

5. Alternatively, because plaintiff has applied for ad­
mission to Louisiana State University “ as a freshman 
(Junior Division) desiring to pursue the combined liberal 
arts curriculum in the College of Arts and Sciences and 
law course in the Law School under a plan offered to stu­
dents attending the University” , as shown by the allega­
tions of his complaint, and particularly paragraph 9 thereof, 
and hence plaintiff has and can assert no interest on behalf 
of others in other colleges, departments or divisions of 
Louisiana State University or on behalf of any other per­
son or persons than those students with proper and accept­
able qualifications desiring to pursue the combined liberal 
arts curriculum in the College of Arts and Sciences and 
law course in the Law School offered to students attending 
Louisiana State University.

Fred S. LeBlanc, Attorney General of Louisiana, 
By (S.) Fred S. LeBlanc, C. C. Bird, Jr., Fred A. 
Blanche, Sr., L. W. Brooks, James M. Fuller, 
[fols. 42-168] Arthur 0  ’Quin, Leander H. Perez, C. 
V. Porter, Victor A. Sachse, E. B. Sadler, Jr., H. C. 
Sevier, A. J. Shepard, Jr., Grove Stafford, Oliver 
Stockwell, Wood H. Thompson, John H. Tucker, 
Jr., W. Scott Wilkinson, Attorneys for Defendants, 
Address: 1106 Louisiana National Bank Building, 
Baton Eouge, Louisiana.

Certificate

We, of counsel for the defendants, do hereby certify that 
a copy of the above and foregoing motion has this day 
been served upon A. P. Tureaud, Sr., whose address is 1821 
Orleans Avenue, New Orleans, Louisiana, of counsel for 
plaintiff, by delivering same to him in person.

New Orleans, Louisiana, September 8, 1953.
Fred S. LeBlanc, Attorney General of Louisiana, Bv 

Fred S. LeBlanc, L. W. Brooks.



21

[fol. 169] U nited  S tates D istbict Couet E astern D is­
trict OF L ouisiana  B aton E ouge D ivision

No. 1238

Civil Action—Filed 9/11/53

A lexander P. T urbaud, J r., a minor, by Alexander P. Ture- 
aud, Sr., his father and next friend. Plaintiff

vs .

B oard of S upervisors of L ouisiana S tate U niversity  and 
A gricultural and M echanical  College, et ah, Defend­
ants
A. M. Trudeau, Jr., A. P. Tureaud, Sr., Kobert L. Car­

ter, Tlmrgood Marshall, U. Simpson Tate, Attorneys for 
Plaintiff.

Fred S. LeBlanc, Attorney General of Louisiana, W. C. 
Perrault, First Assistant, Attorney General, J. Clyde 
Pearce, Assistant Attorney General, W. Scott Wilkinson, 
Leander H. Perez, C. C. Bird, L. W. Brooks, James K. 
Fuller, C. V. Porter, J. H. Tucker, Jr., Fred Blanche, 
Arthur O’Quin, Victor A. Sachse, E. B. Sadler, Jr., H. C. 
[fol. 170] Sevier, A. J. Shepard, Jr., Grove Stafford, Oliver 
Stockwell, Wood Thompson, Attorneys for Defendants.

Taylor, Porter, Brooks, Puller & Phillips, Wilkinson, 
Lewis & Wilkinson, Of Counsel.

Op in io n , F indings of F act and Conclusions of L aw 
September 11, 1953

W e ig h t , District Judge;
The purpose of this class action is to obtain an injunc­

tion requiring the defendants to admit to the combined 
six year arts and sciences and law courses at Louisiana 
State University the plaintiff and other Negro citizens 
similarly situated. It is the admitted policy of Louisiana 
State University to deny admission to Negroes and this 
court has on three occasions issued injunctions against 
Louisiana State University authorities requiring them to 
admit Negroes to the School of Law, the School of Medi-



22

cine and the Graduate School. Wilson v. Board of Super­
visors, 92 F. Supp. 986, aff’d 340 U. S. 909; Foister v. Board 
of Supervisors, No. 937 Civil Action; Payne v. Board of 
Supervisors, No. 894 Civil Action.

Plaintiff asserts that the combined arts and sciences and 
law course offered at Southern University, a college ex­
clusively for Negroes maintained by the State of Louisiana, 
is not equal to the combined arts and sciences and law 
course offered by Louisiana State University. The de­
fendants, on the other hand, suggest that the plaintiff and 
others similarly situated may go to Southern University 
to obtain the arts and sciences part of the combined course 
and then transfer to Louisiana State University School of 
Tjaw if they are not satisfied with the School of Law of­
fered at Southern.

The plaintiff’s answer to this suggestion is that the arts 
and sciences part of the combined course offered at South­
ern is not substantially equal to the arts and sciences part 
of the combined course offered at Louisiana State Uni- 
[fol. 1711 versity and that in any event a Negro obtain­
ing his arts and sciences credits at Southern University 
would not he given an arts and sciences degree by Louisi­
ana State TLiiversity after the successful completion of 
his first year in law as would a student who took his arts 
and sciences as well as law at Louisiana State University. 
Defendants admit that this is so but show that a Negro 
who obtains his arts and sciences work at Southern Uni­
versity and successfully completes one year of law at 
Louisiana State T’̂ niversity may then go hack to Southern 
and obtain his arts and sciences degree.

Plaintiff's application for an interlocutory injunction 
was heard on September 8, 1953 on pleadings, affidavits 
and depositions. On the satne day the defendants filed 
a motion to dismiss plaintiff's action insofar as it pur­
ports to be a class action and the argument on the motion 
was likewise heard. hereupon the court took time to 
consider and now being advised sets forth the findinsrs 
ot tact atid conclusions of law which constitute the grounds 
of its decision.



23

Findings of Fact
1. The State of Louisiana has established, maintains and 

operates an institution known as the Louisiana State Uni­
versity and Agricultural and Mechanical College. The 
University has a Junior Division, which is really the fresh­
man or first year college class, a College of Arts and 
Sciences and a School of Law. The University operates 
as part of the educational system of the State of Louisiana 
and is maintained by appropriations from public funds 
which are raised by taxation upon the citizens and tax­
payers of said state.

2. The defendant Board of Supervisors of Louisiana 
State University and Agricultural and Mechanical Col­
lege pursuant to the constitution and laws of the State of 
Louisiana exercises over-all authority with reference to 
the regulation of the institution, including the admission 
of students. Students of all ethnic groups, except Negroes, 
are admitted to the University.

3. The State of Louisiana has established and as a state 
function maintains and operates an institution known as 
[fob 172] Southern University. Admission to Southern 
University is limited to Negroes. Southern University is 
primarily a College of Arts and Sciences. There has been, 
however, a Department of Law at this University since 
1947.

4. Plaintiff, Alexander P. Tureaud, Jr., is a Negro resi­
dent and citizen of Louisiana, who possesses all the 
qualifications for admission to the Junior Division of 
Louisiana State University for the purpose of obtaining 
through the combined arts and sciences and law curriculum 
an arts and sciences degree as well as a degree in law.

5. During the period when defendants were receiving 
applications for admission as students in the Junior Divi­
sion of the Louisiana State University for the school year 
1953-54 and after complying with all the rules and regu­
lations governing the admission of students to said Junior 
Division, plaintiff applied for admission as a student.

6. On August 8, 1953 the plaintiff wms advised by letter 
from the defendant, John A. Hunter, Registrar of Louisi­
ana State University, that his “ application for admission 
to Louisiana State University as a freshman (Junior Di-



24

vision) desiring to pursue the liberal arts curriculum in 
the College of Arts and Sciences has been rejected in line 
with our policy not admitting Negro students to that area.” 
Plaintiff’s purpose in applying for admission to Louisiana 
State University Avas in order that he might pursue the 
combined arts and sciences and laAv course leading to a 
degree in arts and sciences in four years and to a degree 
in law in six years.

7. Louisiana State University was established in 1859 
and has been in continuous operation since that time sa\m 
for a short period during the Civil War when it was closed 
because of hostilities. The present value of its plant is 
$34,724,654.84. Louisiana State University is a full Uni­
versity accredited by every recogmized accrediting agency 
in the country. It has tAvelve colleges and several diAusions 
within these colleges and offers not only undergraduate 
degrees but proA’ides professional degrees, masters degrees 
and doctorates.

8. Southern University A\ms established in 1880 and its 
plant is valued at about tAvo and one-half million dollars. 
Southern University is not a member of the Association of 
[fob 173] Colleges and Secondary Schools but it enjoys 
the highest rating given by the Association.

9. Louisiana State University operates on an annual 
budget of twelve million dollars. It has 6400 students 
with a per capita operating cost of $1875.00. Southern 
University operates on an annual budget of less than two 
million dollars. There are approximately 2900 students 
enrolled making a per capita operating cost of $689.65.

10. Although there appears no question but that the 
State of Louisiana has made a bona tide effort to maintain 
and operate an adequate institution at the arts and sciences 
level in Southern University, the fact is, as shovm by the 
analysis AAdiich is attached to these findings as an appendix, 
that the three year arts and sciences part of the combina­
tion arts and sciences and laAv curriculum offered by 
Southern University is not substantially equal to the three 
year arts and sciences part of the combined arts and sciences 
and laAv curriculum offered by Louisiana State Uni\’ersitv. 
In addition, under the exclusion policy as iioaa’ enforced by 
Louisiana State UniA*ersity, a Negro desiring to pursue



25

the combined arts and sciences and law curriculum would 
be required to go to Southern University for his arts and 
sciences work, transfer to Louisiana State University 
School of Law, if he were not satisfied with the School of 
Law at Southern, and then after one year of law receive 
his arts and sciences degree from Southern University. 
A non-Negro student, on the other hand, desiring to pur­
sue the combined arts and sciences and law curriculum may 
obtain his arts and sciences courses, his arts and sciences 
degree, as well as law degree at Louisiana State Univer- 
sitv without transfer.

Conclusions of Law
1. This suit arises under the constitution and laws of 

the United States, and seeks redress for the deprivation 
of civil rights guaranteed by the Fourteenth Amendment. 
This court is vested with jurisdiction. 28 U. S. C. § 1343; 
Act of April 20, 1871, Chapter 22, Section 1, 17 Stat. 13; 
8 U. S. C. §43; Act of Mav 31, 1870, Chapter 114, Section 
16, 16 Stat. 144; 8 IT. S. C. § 41; 28 U. S. C. § 2281.
[fob 174] 2. This action is properly brought as a class
action under Eule 23(a) of the Federal Rules of Civil Pro­
cedure. Defendants’ motion to dismiss is accordingly 
denied.

3. The class which plaintiff represents is composed of 
the Negro citizens of the state who possess the requisite 
qualifications for admission to the combined arts and 
sciences and law course offered by tlie Louisiana State 
University and Agricultural and Mechanical College. We 
hold, in conformity with the equal protection clause of the 
Fourteenth Amendment, that the plaintiff and all others 
similarly qualified and situated are entitled to educational 
advantages and opportunities available within the state, 
at the same time, upon the same terms and substantially 
equal to those which the state provides and makes avail­
able to other residents and citizens of the state. Missouri 
ex rel Gaines v. Canada, Begistrar of the University of 
Missouri, et al, 305 IT. S. 337; Sipuel v. Board of Begents 
of University of Oklahoma, et ah, 332 Û. S. 631; McLaurin 
V. Olilahoma State Begents, 339 TT. S. 637; Sweatt v. Painter, 
339 U. S. 629; Wilson v. Board of Supervisors, 92 F. Supp.



26

986, a ff’d 340 U. S. 909; Battle v. Wichita Falls Junior 
College, 205 F. 2d — (CCA 5).

4. In Sweatt v. Painter, supra, the Supreme Court out­
lined the following criteria for determining substantial 
equality in educational institutions: (1) Education and 
reputation of the faculty; (2) variety of courses offered 
in the curriculum; (3) physical facilities of the institu­
tion; (4) library facilities; (5) position and influence of 
the alumni; (6) standing of the institution in the com­
munity; (7) traditions and prestige. Using these criteria, 
the combined course in arts and sciences and law and more 
particularly the arts and sciences part of such course, of­
fered by Southern University is not substantially equal 
to the combined arts and sciences and law course offered 
by Louisiana State University. In fact, only in a proceed­
ing of this kind would such equality be seriously suggested.

5. The court is of the opinion that the denial of admis­
sion of the plaintiff to the Junior Division of Louisiana 
State University for the purpose of pursuing the com­
bined arts and sciences and law course offered by that 
University solely because of his race and color denies a 
[fol. 175] right guaranteed to plaintiff by the Fourteenth 
Amendment and that such denial would inflict irreparable 
injury upon the plaintiff.

It accordingly follows that the situation presented re­
quires the issuance of a temporary injunction.

(S.) J. Skelly Wright, United States District Judge.

New Orleans, Louisiana, September 11th, 1953.

[fol. 176] A ppendix  to F indings of F act 

Louisiana State University

Louisiana State University offers a combination arts 
and sciences and law course whereby a student may com­
plete the requirements for and receive an A.B. or B.S. and 
an LL.B. degree in six years rather than in seven years. 
The University offers similar combination courses in 
geology and law and in commerce and law.



27

Southern University-
Southern University offers a combination course in 

political science and law, English and law and mathematics 
and law. Very few students have undertaken this course 
and no degree under this program has been awarded by 
Southern. At present only one applicant has applied for 
the combination curriculum.

Louisiana State University
Louisiana State University operates on an annual budget 

of $12,000,000. It has 6400 students with a per capita 
operating cost of $1875.00. It is composed of twelve col­
leges and various divisions, departments and schools 
within these colleges and offers bachelors degrees at the 
college level, masters and doctoral degrees at the gradu­
ate level, and various degrees at the professional school 
level. It is a member of the Southern Association of Col­
leges and Secondary Schools.

[fol. 177] Southern University
Southern University operates on an annual budget of 

$2,000,000. There are approximately 2900 students en­
rolled in the college proper with a per capita cost of $689.65. 
With the exception of the law school, the entire instruction 
offered is at the college level. The institution is approved 
by the Southern Association of Colleges and Secondary 
Schools, but unlike LSU, is not a member of the accredit­
ing agency. There are 150 regular faculty members in­
cluding 91 instructors, 30 assistant professors, 16 asso­
ciate professors and 16 full professors.

Louisiana State University
At the college level is the Junior Division, where all 

first year college work is concentrated, the College of Agri­
culture, the College of Chemistry and Physics, the College 
of Commerce, College of Education, the College of Engi­
neering, and the College of Arts and Sciences.



28

Southern University
The college offers a program of freshman studies. It 

contains a Division in Agriculture, as compared with a 
College of Agriculture at LSU; a Division of Business, 
as compared with a College of Commerce; a Division of 
Education, as compared to a College of Education at LSU ; 
a Division of Health and Physical Education; a Division 
of Home Economics; a Division of Industrial and Tech­
nical Education; a Division of Military Science and Tac­
tics; a Division of Music; and a Division of Liberal Arts 
and Sciences, as compared to College of Arts and Sciences 
at LSU.
[fol. 178] Louisiana State University

The College of Arts and Sciences is headed by Dean 
Cecil G. Taylor, who holds a Ph.D. degree, and contains 
18 departments in the following fields: Air Science; Books 
and Libraries; Botany, Bacteriology and Plant Pathology; 
English; Fine Arts; Foreign Languages (Classical, Ger­
manic and Slavic and Romance); Geography and An­
thropology; Geology; Government; History; Journalism; 
Mathematics; Military Science; Philosophy; Psychology; 
Sociology; Speech; Zoology, Physiology and Entomology. 
The college is staffed by 160 regular faculty members plus 
an additional instructional force below faculty rank. Of 
the regular faculty staff of 160 approximately 25% are 
associate professors, and 25% are of full professional 
rank. Between 600 and 700 students are enrolled. The 
goal of the college is to secure as instructors those who 
hold Ph.D. degrees iu their respective fields. The Dean’s 
salary is $9700.

Southern University
The Division of Liberal Arts and Sciences is composed 

of nine departments including the departments of Pine and 
Applied Arts, Biology, Chemistry, Physics (as compared 
to the College of Chemistry and Physics at LSU), Eng­
lish, Mathematics, Modern Poi'eign Languages, Psy­
chology, and Social Sciences. There are some 66 regular 
faculty Tuembers including a part-time instructor. There 
is no Department of Air Science; Books and Libraries; 
Botany, Bacteriologj^ and Plant Pathology; Geograjiby and



29

Anthropology; Geology; Government; History; Journal­
ism; Philosophy; Sociology; Speech; and Zoology. Greek, 
German and Slavic Languages, Italian and Portuguese 
are not taught.

[fol. 179] Louisiana State University
Dean J. D. Cade 'who holds an M.A. degree is Dean of 

the College and Director of the Division of Liberal Arts 
and Sciences. He receives a salary of $7200. The re­
quirement at Southern for an instructorship is a Master’s 
degree. In the College of Arts and Sciences, the Depart­
ment of Books and Libraries lists two instructors and 
offers two courses; The Department of Botany, Bacteri­
ology and Plant Pathology lists five faculty members and 
offers 37 courses; The Department of Ancient and Modern 
Foreign Languages lists two professors in Classical Lan­
guages and offers 35 courses; The Department of English 
lists 32 teachers and offers 66 courses; The Department 
of Fine Arts lists 12 teachers and offers 53 courses; The 
Department of Ancient and Modern Foreign Languages 
lists 3 teachers in German and Slavic Languages and of­
fers 17 courses and Russian languages; the Department 
of Government lists 5 professors and offers 32 courses; 
the Department of History lists 10 teachers and offers 36 
courses; The Department of Journalism lists 6 teachers 
and offers 19 courses; the Department of Mathematics lists 
24 teachers and offers 38 courses; The Department of 
Philosophy lists 3 teachers and offers 22 courses; the De­
partment of Psychology lists 9 teachers and offers 44 
courses; the Department of Ancient and Modern Foreign 
Languages offers 2 courses in Italian, 2 in Portuguese, 20 
in Spanish and 2 courses in Romance Philosophy, using 
12 teachers; the Department of Sociology lists 11 teachers 
and offers 55 courses; and the Department of Zoology, 
[fol. 180] Physiology and Entomology lists 11 teachers and 
offers 45 courses.

Southern University
Within the Division of Liberal Arts and Sciences at 

Southern, the Department of Pine and Applied Arts lists 
3 faculty members and offers 18 courses. The Depart­
ment of Biology lists 12 faculty members, with one on



30

leave, and offers 31 courses; the Department of Chem­
istry lists 4 faculty members and offers 11 courses. The 
Department of English lists 17 faculty members, one of 
whom is designated as part time, and offers 27 courses, 
including 6 courses in English composition and journal­
ism and 11 courses in speech. The Department of Mathe­
matics lists 7 faculty members and offers 11 courses. The 
Department of Physics lists 3 faculty members and offers 
5 courses. The Department of Modern Foreign Languages 
lists 4 teachers, with one on leave, and offers 23 courses 
in Spanish, German and French. The Department of Psy­
chology lists one teacher and offers 10 courses. The De­
partment of Social Sciences lists 15 faculty members, with 
one on leave, and offers 96 courses in Economics, Geog­
raphy, History, Political Science, Sociology and Anthro­
pology.

Louisiana State University
Louisiana State University offers a combined course in 

law and arts and sciences, geology and law and commerce 
and law as indicated. After completion of the Junior Di­
vision, a student must complete prescribed minimum re­
quirements for arts and science degree and may then 
within certain limitations complete the necessary semester 
hours for his degree by choosing from a variety of elec­
tives. After completion of Junior Division a student who 
[fol. 181] at first matriculated for the arts and sciences 
and law course may switch to geology and law without loss 
of time or credits. There is no question but that this com­
bination is a working program and going concern.

Southern University
Southern University offers a combination curriculum in 

3 fields as previously indicated. The program is fixed as 
set forth in the school catalogue. No deviation from course 
of study there prescribed is permissable under South­
ern’s program.



31

[fol. 182] [File endorsement omitted]

U n it e d  S tates  D istr ic t  C ourt

A lex a n d er  P. T u b ea u d , J r., a Minor, by Alexander P.
Tureaud, Sr., His Father and Next Friend, Plaintiff,

vs.
B oard of S uper v iso r s  op L o u isia n a  S tate U n iv er sity  and 

A g r ic u ltu r a l  and  M e c h a n ic a l  C ollege, % Tom W. Dut­
ton, President, Board of Supervisors of Louisiana State 
University and Agricultural and Mechanical College, 
1535 Poydras Street, New Orleans, Louisiana

T roy H. M id d leto n , President, Louisiana State University, 
Baton Rouge, Louisiana,

and
J o h n  A. H u n t e r , Registrar, Louisiana State University, 

Baton Rouge, Louisiana, Defendants.

J u d g m e n t— September 11, 1953

Plaintiff’s application for a temporary injunction was 
heard by this court upon the pleadings, evidence and de­
positions, and for the reasons expressed in the separate 
findings of fact and conclusions of law showing plaintiff 
entitled to a temporary injunction:

It is ordered, adjudged and decreed that a temporary 
injunction issue in this matter, and that accordingly the 
defendant. Board of Supervisors of Louisiana State L Di­
versity and Agricultural and Mechanical College, and the 
defendants, Troy H. Middleton and John A. Hunter, tlie 
agents subject to the authority of the Board of Supervisors 
of the Louisiana State University and Agricultural and 
Mechanical College, governing and controlling the accept- 
[fol. 183] ance and admission of applicants for admission 
to the Junior Division of Louisiana State University and 
Agricultural and Mechanical College, either through their 
agents, servants or employees, and eacli of them, their suc­
cessors in office and their agents and employees, be and 
they hereby are restrained and enjoined, pending the deter-



32

niination of this action, from refusing on account of race 
or color to admit the plaintiff, and any other Negro citizen 
of the State similarly qualified and situated, to the Junior 
Division of Louisiana State University and Agricultural 
and Mechanical College for the purpose of pursuing the 
combined arts and sciences and law course offered by that 
University.

It is further ordered, adjudged and decreed that a copy 
of this judgment he served upon each of said defendants.

New Orleans, Louisiana,
(S.) J. Shelly Wright, United States District Judge.

September 11th, 1953.

[fob 184] [File endorsement omitted]
U n it e d  S tates  D is t e ic t  C o u et  fo e  t h e  E a ster n  D is t e ic t  

OF L o u isia n a , B aton  R ouge D iv isio n

[Title omitted]

M otion  fo e  N ew  T rial—Filed September 15, 1953

Defendants move that the opinion and judgment of this 
Court rendered and signed herein on September 11, 1953, 
be set aside and vacated and that a new trial be granted 
to the defendants for the reasons and on the grounds fol­
lowing :

1. The Court erred in holding that it is vested with jur­
isdiction of the subject matter, jurisdiction being vested in 
a three-judge Court as provided by law, particularly by 
USCA 28, Sections 2281 and 2284.

2. The Court erred in holding that this action is properly 
brought as a class action under Rule 23 (a) of the Federal 
Rules of Civil Procedure and in denying defendants’ mo­
tion to dismiss on this ground, in absence of allegations or 
proof that citizens other than plaintiff had been excluded 
under order of the defendant. Board of Supervisors of the 
Louisiana State University and Agricultural and Me­
chanical College.

3. The Court erred in failing to maintain defendants’ 
motion to dismiss this action because of the incompetency



33

of plaintiff to institute and maintain the same and to stand 
in judgment herein, and that hence the judgment rendered 
in said plaintiff’s favor is a nullity.

4. The Court erred in holding that the denial of admis­
sion of the plaintiff to the junior division of Louisiana 
State University and Agriculture and Mechanical College 
for the purpose of pursuing the combined Arts and Sciences 
and Law Course offered by said defendant University 
denies to plaintiff a right guaranteed by the Fourteenth 
Amendment and that such denial will inflict irreparable 
injury upon plaintiff.
[fol. 185] 5. The opinion of the Court and the judgment
rendered thereon are contrary to law.

6. The opinion of the Court and the judgment rendered 
thereon are contrary to the evidence.

7. The Court erred in holding that the combined course 
in Arts and Sciences and Law, and more particularly the 
Arts and Sciences part of such course, offered by Southern 
University is not substantially equal to the combined Arts 
and Sciences and Law Course offered by Louisiana Stafe 
University.

8. The Court erred in its comparative analysis of the 
curricula of Louisiana State University and Agricultural 
and Mechanical College and Southern University, and its 
comparison of the two Universities as to courses offered, 
the cost thereof, and the cost per student, etc. as contained 
in the appendix to the said opinion.

9. The Court erred in holding that the situation presented 
requires the issuance of a temporary injunction.

10. The Court’s judgment ordering the issuance of a 
temporary injunction in this matter is not in compliance 
with applicable law.

(Original Signed) Fred S. Leblanc, Atty. Gonl. of 
La., C. C. Bird, L. W. Brooks, James B. Fuller, C. 
V. Porter, J. H. Tucker, Jr., Fred Blanche, Artluir 
0  ’Quinn, Victor A. Sachse, B. B. Sadler, Jr., H. C. 
Sevier, A. J. Shepard, Jr., Grove Stafford, Oliver 
Stockwell, Wood Thompson, W. Scott Wilkinson, 
per L. H. Perez, L. H. Perez, Attorneys for De­
fendants. Address: 1106 La. National Bank Bldg., 
Baton Bouge, La.



34

[fols. 186-188] Certificate
I, of counsel for defendants, do hereby certify that a 

copy of the above and foregoing motion has this day been 
served upon A. P. Tureaud, of counsel for plaintiff, whose 
address is 1821 Orleans Avenue, New Orleans, Louisiana, 
by delivering same to his office.

New Orleans, Louisiana, this 14th day of September, 1953.
(Original Signed) L. H. Perez, of Counsel for De­

fendants.
Order

It is ordered that the above motion for new trial be 
fixed for hearing at 10:00 o’clock A. M. Wednesday, Sep­
tember 16th, 1953.

New Orleans, Louisiana, September 14th, 1953.
(S.) J. Skelly Wright, Judge.

[fols. 189-220] I n U n it e d  S tates D is t e ic t  C ouet  

[Title omitted]

O edee  D e n y in g  M otion  for  N ew  T ria l , e t c .—September 16,
1953

This cause came on this day for hearing on motion of 
defendants for new trial;

Present: Lcander H. Perez, W. Scott Wilkinson, Attor­
neys for defendants; A. P. Tureaud, Attorney for plain­
tiff;

After hearing argument of counsel for the respective 
parties;

I t is ordered that the motion of defendants for a neiv 
trial be, and the same is hereby, denied.

It is further ordered that the order of September 11th, 
1953, staying the injunction be and the same is hereby 
recalled, vacated and set aside;

It is further ordered that the preliminary permanent in­
junction herein prayed for be, and the same is hereby, 
granted.



35

[fol. 221] In t h e  U n it e d  S tates C ourt  of A ppea ls  foe  t h e  
F if t h  C ih c u it

No. 14752
B oard of S u per v iso r s  of L o u isia n a  S tate U n iv er sity  and  

A g r ic u ltu r a l  a nd  M e c h a n ic a l  C ollege, et al., Appel- 
lants, versus

A lexander  P. T u eea u d , J r., a Minor, by Alexander P. 
Tureaud, Sr., His Father and Next Friend, Appellee

Appeal from the United States District Court for the 
Eastern District of Louisiana

On Motion for Stay Order and on Appeal from Judgment 
Issuing Preliminary Injunction

O p in io n — October 28, 1953
Before H u t c h e s o n , Chief Judge, and R u sse l l  and R iv es , 

Circuit Judges.
H u t c h e s o n , Chief Judge:
Brought against state officers of the state of Louisiana, 

and drawn with precision for the purpose^ and with the

‘ The petition alleged:
“ 1. (c) The jurisdiction of this Court is also invoked 

under Title 28, II. S. C., Sec. 2281. This is an action for an 
interlocutory injunction and a permanent injunction re­
straining the action of officers of the State of Louisiana in 
the enforcement of statutes of the State of Louisiana and the 
execution of and the enforcement of an order made by de­
fendant Board of Supervisors of the Louisiana State Uni­
versity and Agricultural and Mechanical College, acting as 
an administrative board or commission under statutes of 
such State, as hereinafter more fully appears.”

” 7. Article XII, Section 1, of the Constitution of Louisi­
ana, 1921, provides, as follows:

‘Separate free public schools shall be maintained for 
the education of white and colored children between the 
ages of six and eighteen years. ’

” 8. The Louisiana State University and Agricultural and 
Mechanical College was established in the year 1876.



36

[fol. 222] effect  ̂of requiring the convening of a three judge 
court under Sections 2281 et seq., Title 28 U. S. C., the com­
plaint sought injunctive relief, interlocutory and final. 

Instead, as was required by Sec. 2284, Chapt. 155, Title
28 U. S. C., of taking the steps required of him for the

Throughout the existence of the Louisiana State University 
and Agricultural and Mechanical College, defendant, the 
Board of Supervisors of the Louisiana State University and 
Agricultural and Mechanical College, has maintained and 
pursued the uniform policy of restricting admission to the 
under-graduate divisions of the Louisiana State University 
students. Defendant, Board of Supervisors of the Louisiana 
State University and Agricultural and Mechanical College, 
acting as an administrative hoard of commission of the 
State of Louisiana under statutes of said State, has made 
and established an order excluding, because of their race 
or color, plaintiff and all other Negroes otherwise qualified, 
residing in the State of Louisiana, from all colleges, and 
undergraduate divisions of the Louisiana State University 
and Agricultural and Mechanical College.”

“ 13. Plaintiff is informed and believes, and therefore 
alleges upon information and belief, that but for the laws 
of the State of Louisiana set forth in paragraph 7 hereof, 
defendants would not have established and would not be 
enforcing or executing the order set forth in paragraph 8 
hereof and would not have pursued and would not be pur­
suing the policy, practice, custom and usage of denying his 
admission because of his race and would not have deprived 
and would not continue to deprive plaintiff, and other 
Negroes similarly situated, of his or their rights secured 
by the Constitution and laws of the United States, and here­
inbefore and hereinafter more fully set forth.”

 ̂Plaintiffs prayed: that this court immediately convene 
a three judge court as required by Title 28 U. S. C., Sec. 
2284: and further prayed at great length and in great detail 
that first an interlocutory and later, upon final hearing, a 
permanent, injunction he granted restraining the enforce­
ment of the order set out in par. 8 (note 1, supra).



37

[fol. 223] constitution of the three judge court, as prayed,^ 
the district judge proceeded with the hearing as though it 
were a case for one instead of three judges, and, setting the 
interlocutory injunction before himself as a single judge, 
heard and granted it.

The defendants, appealing from that order, are here 
seeking, a stay of it pending the decision of their appeal, 
and a vacation and reversal of it as improvidently entered, 
because (a) the case being for three judges, the order was 
entered without jurisdiction, and (b) if there was jurisdic­
tion, the order was, for the reasons pressed by them, 
wrongfully entered.

The appellees, vigorously opposing this view, assert, 
contrary to the established and settled history and con-

® Compare what was determined and said in the earlier 
case against the same defendants by the three judge court 
in Wilson v. Board of Supervisors, 92 Fed. Supp. at 988:

“ This suit arises under the Constitution and laws of 
the United States, and seeks redress for the depriva­
tion of civil rights guaranteed by the Fourteenth 
Amendment and this court is vested with jurisdiction, 
28 U. S. C. A., Section 1343; Act of April 20, 1871, 
Chapt. 22, section 1, 17 Stat. 13, 8 U. S. C. A. Sec. 43; 
Act of May 31, 1870, Chapt. 114, Sec. 16, 16 Stat. 144, 
8 U. S. C. A. Sec. 41; 28 U. S. C. A. Sec. 2281. Since 
an application for an interlocutory injunction against 
the order of a State administrative board is sought on 
the grounds of unconstitutionality of the order, the 
subject matter is properly cognizable by a three judge 
court under See. 2281 of the Judicial Code, 28 U. S. C., 
Sec. 2281, 28 U. S. C. A., Sec. 2281. Oklahoma Natural 
Gas Co. V. Bussell, 261 U. S. 290, 43 St. Ct. 353, 67 
L. Ed. 659. * *

“ The court is of the opinion that the order of the 
defendant Board of Supervisors of Tmuisiaua State 
University and Agricultural and JMochanical College 
denying admission to the plaintiff to the Department 
of Law solely because of his race and color denies a 
right guaranteed to plaintiff by the Fourteenth Amend­
ment * *



38

struction of the applicable statute requiring the constitu­
tion of a three judge court, that the statute is a purely 
technical one and must be strictly limited whenever rea­
sonably possible to do so.
[fob 224] That this is not so, a documented statement of 
the mischief and defect for which the law did not provide 
before the enactment of this highly remedial legislation 
may be found set out in many law review articles and deci­
sions. These have made it clear that whenever the case is 
one for three judges, that is where an injunction is sought 
against a state statute or order of a state administrative 
body on the grounds of its unconstitutionality, the district 
judge is forbidden to proceed alone where the suit is against 
a state officer.

In “ A Case for Three Judges” , 47 Harvard Law Review, 
795, the writer, using Heydon’s case as his test and guide, 
undertook to examine into and point out: “ (1) What was 
the common law before the making of the Act? (2) What 
was the mischief and defect for which the common law did 
not provide? (3) What remedy the Parliament hath re­
solved and appointed to cure the disease of the common­
wealth? And (4) The true reason of the remedy?” and 
that ‘‘then the office of all the judges is always to make 
such construction as shall suppress subtle inventions and 
evasions for continuance of the mischief, and pro privato 
coinmodo, and to add force and life to the cure and remedy, 
according to the true intent of the makers of the act, pro 
bono publico.” Beginning at page 803 of that article ap­
pears a documented statement of the mischief and defect 
which it was the purpose of the statute to relieve against.

It is, tlierefore, a misconstruction of the decision in 
Phillips V. United States, 312 U. S. 246, to conclude that 
the Supreme Court intended therein to label this highly 
remedial statute as a mere technicality to be evaded and 
[fol. 225] circumvented by a single district judge at will. 
Indeed, the appellees in their brief themselves' state the cor­
rect rule thus: ‘‘Where the technical jurisdictional pre­
requisites of Section 2881 are met, a three judge court 
becomes Tiiandatory” , citing many cases.

It is true that the plaintiff has it in his own hands to 
determine by the allegations of his complaint, in the first



39

instance, whether a three judge court should be summoned, 
and, further, if, as originally drawn, his complaint presents 
a case for three judges, he may by amendment to or aban­
donment of his claim requiring the constitution of a three 
judge court, enable the district judge to proceed alone. This 
was many times taken advantage of, under the statute be­
fore it was amended to provide a three judge court in all 
cases where an injunction was sought, by the action of the 
plaintitf, if he desired one judge action, in dismissing his 
prayer for interlocutory injunction. Emjahatically, how­
ever, the statute does not permit the district judge to pick 
and choose among the allegations of a complaint and, ignor­
ing those which require the constitution of a three judge 
court, proceed with the case as though those allegations 
had never been in, or had been dismissed from, the complaint.

As brought and pressed here, without amendment, aban­
donment, or any departure, plaintiffs’ suit was based upon 
an affirmative declaration that Article 12 Sec. 1 of the Con­
stitution of Louisiana, set out in note 1, supra, the statutes 
of Louisiana passed pursuant thereto and the order of the 
Board of Supervisors based, thereon, were violative of the 
Constitution of the United States, and that plaintiff was en­
titled to injunctive relief therefrom.
[fol. 226] Under these circumstances, the district judge, in 
proceeding alone, exceeded his jurisdiction and invaded the 
jurisdiction of the statutory three judge court provided by 
Sections 2281 et seq.

Appellee’s reliance on our case, Wichita Palls v. Battle, 
204 F(2) 632, will not at all do. That case was not in any 
view a case for three judges. As was carefully and correctly 
pointed out in the footnotes to that opinion. Art. 7 of the 
Constitution of the State of Texas, and Article 2900, Ver­
non’s Annotated Civil Statutes, while providing in the 
Constitution: “ Special schools shall be provided for the 
white and colored children’’, and in the statute, that “ all 
available public school funds of the state shall be appor­
tioned in each county for the education alike of white and 
colored children” ; also provided, “ and impartial provision 
shall be made for both” . This being so, it would have been 
difficult, if not impossible, in the light of Plessy v. Ferguson, 
163 U. S. 537; Missouri v. Canada, 305 U. S. 337; Sweatt v.



40

Painter, 339 U. S. 629, and Gray v. University of Tennessee, 
97 Fed. Supp. 463, to state a case, short of one attacking 
segregation per se, which was an attack upon that consti­
tution and that statute as unconstitutional on their face. 
In  addition, the suit was not brought, as here, to enjoin an 
order of a state administrative body. On the contrary, the 
suit was an ordinary suit under the civil rights acts to enjoin 
practices instituted by the defendants named, under color 
of state law, which in themselves ivere violative of plaintiffs’ 
civil rights.
[fol. 227] Further, defendant in its answer alleged: “ It is 
only where there is lack of substantial equality in facilities 
and opportunities that the Federal Courts will apply the 
Constitutional law of the United States. There being equal 
facilities and opportunities provided in Texas for negro 
and white children separately, no violation exists, and these 
defendants pray that they he permitted to continue to func­
tion under the general educational system established and 
provided and maintained in part by the State of Texas” , 
and based upon allegations recognizing that equal facilities 
and opportunities must be furnished both races, the defend­
ants filed a cross action for a declaratory judgment, alleging 
that they had complied with this requirement.

To this cross action plaintiff filed its answer, and the 
cause was submitted on a stipulation as to the fact and the 
issues. This stipulation presented no issues as to the con­
stitutionality of the Constitution and Statutes of the State 
of Texas, but only “ Whether the action of the defendants 
in pursuing the Constitution and the State Law of Texas is 
violative of the Constitution of the United States” , and 
“ Whether the defendants’ conduct in denying to minor 
plaintiffs the educational facilities in Hardin Junior Col­
lege solely on account of race and color, while making said 
facilities available to all non Negro students under the same 
and similar circumstances and with similar qualifications, 
is a denial to the plaintiffs rights and privileges protected 
and guaranteed under the Federal Constitution.”

Finally, the defendants in the Battle suit were not state 
officers and the jurisdictional element essential to the con- 
[fol. 228] stitution of a three judge court was completely 
lacking.

We are in no doubt that the suit from which this appeal



41

comes was one for three judges,^ that the district ju d p  was 
without jurisdiction to hear and determine the application 
for injunction, and that the order should he vacated and the 
cause remanded to the district judge with directions to take 
further proceedings not inconsistent herewith.®

Eeversed and remanded.

R iv es , Circuit Judge, dissenting;
With considerable deference, I must in good conscience 

dissent, though respectfully. This case presented, I think, 
purely a factual question, the decision of which was for the 
district judge, and commendahly he shouldered the responsi­
bility imposed upon him by law.

Section 2281 of Title 28, United States Code, does not 
require a district court of three judges in every case when 
requested in a complaint containing the necessary formal 
averments, but only when it is made to appear that a grant 
of the application would require the issuance of an injunc­
tion restraining the enforcement, operation or execution of 
a State statute upon the ground that such statute violates 
the Constitution of the United States. That section provides 
[fol. 229] that such an injunction “shall not he granted 
* * * unless the application therefor is heard and de­
termined by a district court of three judges under section 
2284 of this title.” (Italics supplied.) Under Section 2284, 
the first judge to take action upon an application for injunc­
tion is the district judge to whom the application is pre­
sented. His is the first responsibility to determine whether 
a three-judge court is required. The claim of unconstitu­
tionality must present a substantial federal question. Jame-

" Chapt. 155, Secs. 2281 to 2284, Title 28 U. S. C.; Stratton 
v. St. Louis Railway Co., 282 U. S. 10; Ex Parte Bransford, 
310 U. S. 354; Query v. U. S., 316 U. S. 484; Hutcheson, “ A 
Case for Three Judges” , 47 Harvard Law Review, 795; 
Sterling v. Constantin, 287 U. S. 378; Wilson v. Board of 
Supervisors, 92 Fed. Supp. 986.

® Query v. U. S., note 4 supra, Phillips v. U. S., 312 U. S. 
at 254; Oklahoma Gas Go. v. Packing Co., 292 U. S. 386.



42

son S  Co. V. Morgenthau, 307 U. S. 171; Ex parte Poresky, 
290 U. S. 30; Stratton v. St. Louis Southwestern By. Co., 
282 U. S. 10. If the statute under attack is clearly valid 
{Independent Gin Warehouse Co. v. Dunwoody, D. C. 
Ala., 30 F. 2d 306, affirmed, 5th Cir., 40 F. 2d 1), or if all 
that is involved is construction rather than unconstitu­
tionality of the statute (Ex parte Hobbs, 280 U. S. 168, Query 
V. United States, 316 U. S. 486), no three-judge court is 
necessary. If the district judge to whom the application is 
presented finds no substantial federal question, he may, sub­
ject to review, determine that a three-judge court is not re­
quired, and proceed with the trial of the case in a regular 
one-judge district court. Ex parte Poresky, supra; Scher- 
merhorn, Inc. v. Holloman, 10th Cir., 74 F. 2d 265. That is 
what the district judge did in this case, and in my opinion 
he acted properly. The interlocutory injunction which he 
granted was not based upon the unconstitutionality of any 
State statute. As said by Circuit Judge Miller speaking for 
a three-judge district court in Gray v. Board of Trustees 
of University of Tennessee, 100 F. Supp. 113, 114, 115:

“ We are of the opinion that the case is not one for 
decision by a three-judge court. Title 28 IT. S. Code, 
[fol. 230] Sec. 2281, requires the action of a three-judge 
court only when an injunction is issued restraining the 
action of any officer of the State upon the ground of the 
unconstitutionality of such statute. We are of the 
opinion that the case presents a question of alleged dis- 
criniination on the part of the defendants against the 
plaintiffs under the equal protection clause of the 14th 
Amendment, rather than tlie unconstitutionality of the 
statutory law of Tennessee requiring segregation in 
education. As such, it is one for decision by the Dis­
trict Judge instead of by a three-judge court. ”

Basically, the “ State statute” involved in this case is 
Article XII, Section 1 of the Constitution of Louisiana. 
That clearly appears from a reading of paragraphs 7, 8, 
and 13 of the complaint quoted in Footnote 1 of the majority 
opinion. The “ order” referred to in paragraph 8 is claimed 
to be authorized by that provision of the State Constitution, 
and if it is found to be contrary thereto, then the “ order”



43

falls under the State Constitution without any necessity for 
resorting to the Federal Constitution. The pertinent pro­
vision of the Constitution of Louisiana reads as follows: 
“ Separate free public schools shall he maintained for the 
education of white and colored children between the ages 
of six and eighteen years.’’

The complaint in this case did not challenge segregation 
per se. It was framed upon the assumption that, under the 
present state of the law, segregation is valid if equal facil­
ities are provided. Plessy v. Ferguson, 163 U. S. 537. In­
stead, the complaint charged that the facilities provided 
were unequal and such as to discriminate against the plain- 
[fol. 231] tiff on account of his race or color in violation of 
the equal protection clause of the Fourteenth Amendment.

The quoted provision of the State Constitution has never 
been construed by the Supreme Court of Louisiana to re­
quire segregation in the public schools if unequal facilities 
are provided. It could not he so construed and remain valid 
under the Federal Constitution. As said in Missouri ex rel 
Gaines v. Canada, 305 U. S. 337, 349, “ The admissibility of 
laws separating the races in the enjoyment of privileges 
afforded by the State rests wholly upon the equality of the 
privileges which the laws give to the separated groups 
within the State.” No proposition of law is more firmly 
settled than that the federal courts should not assume, in 
advance of decision by the state court of last resort, that 
that court wdll place such a construction upon a statute as 
will render it obnoxious to the Federal Constitution. Z tali 
Power d  Light Co. v. Pfost, 286 U. S. 165, 186; Arizona 
Copper Co. v. Hammer, 250 U. S. 400, 430; Pelton v. Com­
mercial National Bank, 101 U. S. 143. Indeed an authorita­
tive construction of the provision of the Louisiana Consti­
tution by the Supreme Court of that State would be neces­
sary before a three-judge district court could proceed with 
a suit to enjoin its enforcement and execution as violative 
of the Constitution of the United States. Shipman v. PuPre, 
339 IT. S. 321; cf. 28 U. S. C. 2284(5).

What does the Louisiana Constitution mean when it says 
that “ Separate free public schools shall he maintained f 
Are not the “ public schools” referred to the only kind that 
would be lawTul and constitutional, that is those furnishing 
[fol. 232] equal facilities! It seems to me that the majority



44

of this Court must assume that the Supreme Court of 
Louisiana will not so construe the State Constitutional 
provision. The learned district judge, himself a distin­
guished Louisiana lawyer, assumed that the State Consti­
tution would be given that reasonable construction of which 
it was susceptible so as not to be violative of the Federal 
Constitution. I think the district judge was right.

The majority say that our recent decision of Wichita Falls 
Junior College District v. Battle, 204 F. 2d 634, can he dis­
tinguished on the facts. There would be no point in my 
arguing about the facts of that case, for the law as there 
announced is directly applicable here, and that law is fully 
supported by the Supreme Court decisions cited. A quota­
tion from that case leave me nothing further to say:

“ There is no necessity for deciding the constitution­
ality of an provision of Texas law in determining the 
fact issues which this case presents. Sweatt v. Painter, 
339 LT. S. 629, 70 S. Ct. 848, 94 L. Ed. 1114; Rescue Army 
V. Municipal Court, 331 U. S. 549, 568-574, 67 S. Ct. 
1409, 91 L. Ed. 1666. In Sweatt v. Painter, supra, the 
issue, as here, related to the extent to which the Equal 
Protection Clause of the Fourteenth Amendment limits 
the power of a State to distinguish between students of 
different races in a State-supported educational insti­
tution, and in disposing of this issue the court expressly 
pointed out that it was eliminating from the case the 
question of constitutionality of the State law which 
[fol. 233] restricts admission to the University of Texas 
to white students. Other decisions of the Supreme 
Court are in accord. IMcLaurin v. Oklahoma State 
Regents, 339 U. S. 637, 70 S. Ct. 851, 94 L. Ed. 1149; 
Sipuel v. Board of Regents, 332 XL S. 631, 68 S. Ct. 299, 
92 L. Ed. 247; IMissouri ex rel. Gaines v. Canada, 305 
U. S. 337, 59 S. Ct. 232, 83 L. Ed. 208. Therefore, the 
question for decision is merely whether the policies, 
usages and customs of the appellants actually do dis­
criminate against the appellees on account of their 
race and color in violation of the aforesaid Equal Pro­
tection Clause. Such an issue is a factual one and 
obviously does not address itself to a three-judge couid. 
Rescue Army v. Municipal Court, supra'; Ex parte



45

Bransford, 310 U. S. 354, 60 S. Ct. 947, 84 L. Ed. 1249; 
Ex parte Collins, 277 U. S. 565, 48 S. Ct. 585, 72 L. Ed. 
990; 5eal v. Holcombe, 5 Cir., 193 F. 2d 384.” Wichita 
Falls Junior College Dist. v. Battle, 204 F. 2d 632, 
634, 635.

I, therefore, respectfully dissent.

[fo l. 234] l x  THE U n it e d  S tates  C ourt  of A ppe a l s  fo e  t h e  
F if t h  C ir c u it

B oard of S u per v iso r s  of L o u isia n a  S tate  U n iv er sity  and  
A g r ic u ltu r a l  a nd  M e c h a n ic a l  C ollege, et al.,

versus
A lex a n d er  P. T u r ea u d , J r., a Minor, by Alexander P. 

Tureaud, Sr., His Father and Next Friend

J u d g m e n t— October 28, 1953
This cause came on to be heard on the transcript of the 

record from the United States District Court for the East­
ern District of Louisiana, and was argued by counsel;

On consideration whereof, it is now here ordered and ad­
judged by this Court that the judgment of the said District 
Court in this cause be, and the same is hereby reversed, the 
order granting the injunction vacated, and that said cause 
be, and it is hereby remanded to the said District Court 
for further proceedings not inconsistent with the opinion 
of this Court;

I t is further ordered and adjudged that the appellee, 
Alexander P. Tureaud, Jr., a minor, by Alexander P. 
Tureaud, Sr., his father and next friend, be condemned, to 
pay the costs of this cause in this Court, for which execution 
may be issued out of the said District Court.

“ Rives, Circuit Judge, dissents.”

[fol. 235] Clerk’s Certificate to foregoing transcript 
omitted in printing.



46

[fol. 236] I n  t h e  S xjpeem e  C ourt  op t h e  U n it e d  S tates 
O ctober  T e r m , 1953

No. —

A lexa nder  P. T urea u d , J r., a Minor, by Alexander P. 
Tureaud, Sr., His Father and Next Friend, Petitioner,

vs.
B oard of S u pervisors  of L o u isia n a  S tate  U n iv e r sit y  and  

A g r ic u ltu ra l  and M e c h a n ic a l  C olleg e , e t  al.

S t ip u l a t io n  as to P arts of E ecord T o B e P r in t e d

It is hereby stipulated by and between counsel for the 
respective parties to the above-entitled cause th a t:

For the purpose of the petition for writ of certiorari, and, 
in the event the petition be granted, the printed record 
shall consist of the following:

Amended Complaint (R. 16)
Return and Answer of Defendants to Notice of Applica­

tion for Preliminary Injunction (R. 32).
Motion of Defendant to Dismiss (R. 40).
Findings of Fact and Conclusions of Law and Appendix 

attached (R. 169).
Judgment (R. 182).
Defendants’ Motion for New Trial (R. —).
Opinion of the Court of Appeals (R. 221).
Judgment of the Court of Appeals (R. 234).

Laurence W. Brooks, of Counsel for Respondents; 
Robert C. Carter, of Counsel for Petitioner.

Dated: January 21, 1954.



47

[fo l. 237] S u p r e m e  C ourt  of t h e  U n it e d  S tates , O ctober
T e r m , 1953

No. —

A lexander  P. T u ee a u d , J r., a  Minor, etc.. Petitioner,

vs.

B oard oe S u per v iso r s  of L o u isia n a  S tate  U n iv er sity  and  
A g r ic u ltu ra l  a nd  M e c h a n ic a l  C ollege, e t  al.

O rder E x t e n d in g  T im e  to F il e  P e t it io n  for  W r it  of
C ertiorari

Upon consideration of the application of counsel for 
petitioner.

It is ordered that the time for tiling petition for writ of 
certiorari in the above-entitled cause be, and the same is 
hereby, extended to and including February 16th, 1954.

Earl Warren, Chief Justice of the United States.

Dated this 26th day of January, 1954.

(2891)