Sweat v Painter Briefs

    ■



NUMBER 9619

IN THE

COURT OF CIVIL APPEALS
For the Third Supreme Judicial District of Texas, 

at Austin, Texas
L-tBG -

Heman Marion Sweatt, Appellant

VERSUS

Theophilus Shickel Painter, et al, Appellees

Appealed from the District Court of Travis County

BRIEF FOR APPELLANT

W. J. Durham of Dallas 
Thurgood Marshall of New York
Attorneys for  Appellant.

E. Duncan & Co., Brief Printers, Dallas





INDEX

STATEMENT OF THE NATURE OF THE CASE 1

POINTS UPON WHICH THE APPEAL IS 
PREDICATED ....................................................  2

FIRST POINT RESTATED .................................... 3

STATEMENT UNDER FIRST POINT.................  3

ARGUMENT AND AUTHORITIES UNDER 
FIRST POINT ...............................................   7

SECOND POINT RESTATED ..................................  14

STATEMENT UNDER SECOND POINT.............  14

ARGUMENT AND AUTHORITIES UNDER 
SECOND POINT ............................   17

THIRD POINT RESTATED.................................... 22

STATEMENT UNDER THIRD POINT................  22

ARGUMENT AND AUTHORITIES UNDER 
THIRD POINT............................................   23

CONCLUSION ............................................................  42

PRAYER ......................................................................  42

Page



LIST OF AUTHORITIES

Aiken v. Woodward, (Tex. Civ. App.) 241 S.W. 1117 12

Alston v. Norfolk School Board, 112 F. (2d) 992.... 11

35 Am. Jur. Sec. 377 at p. 115 ...................................  12

13,14,15 Amendments U. S. Constitution...............  23

Buchanan v. Warley, 245 U. S. 6 0 ...........................  26

Constitution of Texas, Article VII, Section 10, Sec­
tion 13, Section 14 ............................................ 19

Crossman v. Galveston, 112 Tex. 303, 247 S. W. 810 7

38 C. J. Sec. 671 at 915 ............................................ 12

Douglass v. Campbell, 89 Ark. 254,116 S. W. 211 .... 8

Ex parte Newman, 14 Wall 152, 20 L. Ed. 877 .......  12

Ex parte Endo, 323 U. S. 283 .................................... 26

Ex parte Virginia, 100 U. S. 339 ...............................  25

Gong Lum v. Rice, 275 U. S. 7 8 ...............................  11

Hughes v. Outlaw, 197 Ala. 452, 73 So. 1 6 ...............  8

H. B. No. 175 (chapter 377, Acts 1945) ...........  21

Hirabayashi v. United States, 320 U. S. 81 ...........  26

Hill v. Texas, 316 U. S. 400 ........................................ 26

Johnson v. School Board, 166 N. C. 468, 82 S. E. 832 7

Page



Kasprowicz v. Tate, (Tex. Civ. App.) 66 S. W. (2d)
435 ........................................................................  7

Eorematsu v. United States, 323 U. S. 214 ...............  26

Love v. Wilcox, 119 Tex. 256, 28 S. W. (2d) 515 .... 7

Merrill Law of Mandamus 1892 34 Am. Jur. 829- 
853 ...............   7

Missouri ex rel Gaines v. Canada, 305 U. S. 337, 
page 349 ................................................................  7

Mitchell v. United States, 313 U. S. 8 0 ...................  7

Pearson v. Murray, 169 Md. 478, 182 (a) 540 ....... 7

People v. Gallagher, 93 N. Y. 438, 45 Am. Rep. 232 7

People ex rel Bidd v. Alton, 193, 111, 309, 61 N. E.
1077 ......................................................................  8

Plessy v. Ferguson, 163 U. S. 537 ...........................  28

Pierre v. Louisana, 306 U. S. 354 ...........................  26

Revised Civil Statutes of Texas Article 2746, 3534, 
Section 5 ................................................................  lg

Ridgeway v. City of Ft. Worth, 243 S. W. 704 .......  12

Roberts vs. City of Boston, 5 Cush (Mass.) 198 28

S. B. No. 228 (chapter 308, Acts 1945) .............. 21

Senate Bill No. 228 of the 49th Legislature...........  17

LIST OF AUTHORITIES (Continued)
Page



Slaughter House Cases, The 16 Wall (U. S.) 36 .... 25

Smith v. Allwright, 321 U. S. 649 ...........................  26

State ex rel Stoutmeyer v. Duffy, 7 Nev. 342 ...........  8

State ex rel Stallard v. White, 82 Ind. 698 ...............  8

State ex rel Kelley v. Ferguson, 95 Neb. 63, 144 N.
W. 1039 ................................................................  8

State ex rel Dresser v. District Board, 135 Wis. 619,
116 N. W. 232 ....................   8

Steele v. Louisville and Nashville R. Co., 323 U. S.
192 ........................................................................  26

Strauder vs. Virginia, 100 U. S. 303 ...................  23

Tunstall v. Brotherhood of Locomotive Firemen, 323 
U. S. 210................................................................  26

United States ex rel Girard Trust Co. v. Helvering,
301 U. S. 540 ........................................................  7

Ward v. Flood, 48 Cal. 3 6 ...........    7

Yick Wo v. Hopkins, 118 U. S. 356 ...........................  26

LIST OF AUTHORITIES (Continued)
Page



NUMBER 9619

IN THE

COURT OF CIVIL APPEALS
For the Third Supreme Judicial District of Texas, 

at Austin, Texas

Heman  Marion Sweatt, Appellant 

VERSUS

T heophilus Shickel Painter, et al, Appellees

Appealed from the District Court of Travis County

BRIEF FOR APPELLANT

STATEMENT OF THE NATURE OF THE CASE

This is an action in mandamus. Heman Marion 
Sweatt, appellant, on May 16, 1946, filed an application 
for a Writ of Mandamus in the 126th District Court 
of Travis County, Texas, against the members of the 
Board of Regents of the University of Texas, the acting



2

President, the Dean of the School of Law and the Re­
gistrar of said University. The application for man­
damus alleged that appellant was fully qualified for 
admission to the School of Law of the University of 
Texas, had duly applied for admission and refused ad­
mission solely because of his race or color in violation 
of the Constitution and laws of the United States and 
of the State of Texas (Tr. 2-9). On June 26, 1946 the 
Court entered an order that the action of appellees in 
denying admission to the appellant was a denial of ap­
pellant’s constitutional right to the equal protection 
of the laws but issuance of the writ was stayed for 
six months to permit the State of Texas to establish 
a separate law school for Negroes substantially equiva­
lent to the one at the University of Texas (Tr. 29-32). 
On December 17, 1946, the Court below denied the 
writ of mandamus. To the judgment, appellant ex­
cepted and gave notice of appeal (Tr. 39).

POINTS UPON WHICH THE APPEAL IS 
PREDICATED

FIRST POINT: THE COURT ERRED IN HOLD­
ING THAT A LAW SCHOOL EQUIVALENT TO 
THAT AT THE UNIVERSITY OF TEXAS HAD 
BEEN MADE AVAILABLE TO APPELLANT.



8

SECOND POINT: THE ERROR OF THE COURT 
IN HOLDING THAT THE COURT’S ORDER OF 
JUNE 28, 1946 HAD BEEN COMPLIED WITH.

THIRD POINT: THE ERROR OF THE COURT 
IN DENYING WRIT OF MANDAMUS ON THE 
GROUND THAT THE PURPORTED PROVISION 
FOR LEGAL TRAINING AT “PRAIRIE VIEW UNI­
VERSITY” MET THE REQUIREMENTS OF THE 
UNITED STATES CONSTITUTION.

FIRST POINT

THE COURT ERRED IN HOLDING THAT A LAW 
SCHOOL EQUIVALENT TO THAT AT THE UNIVER­
SITY OF TEXAS HAD BEEN MADE AVAILABLE 
TO APPELLANT. (First point restated)

STATEMENT

In the initial hearing upon this cause in the court 
below on June 17, 1946, it was found that appellant 
was scholastically qualified for admission to the first 
year class of the University of Texas and that his ap­
plication was denied solely on the basis of race and 
color; that under the Constitution and laws of the Uni­
ted States and Texas appellant is entitled to educa­
tional advantages equal to those offered white persons. 
(Tr. 30) The court further found that the denial of



4

appellant’s application by appellees was a denial to the 
appellant of the equal protection o f the laws “ for the 
reason that no provision has been made for courses in 
law and facilities for teaching the same for persons of 
African descent and of Negro blood at any school with­
in the State of Texas supported by public funds while 
the courses of law and the facilities for teaching the 
same have been afforded to persons of the white or 
Caucasian race.” (Tr. 31)

The court, however, ruled that no writ would issue 
at that time but held that if within six months of the 
initial hearing, a course in legal instruction equivalent 
to that offered white students at the University of Tex­
as was not established and made available to appellant, 
the writ would issue but that if such a course equivalent 
to that offered at University of Texas was made avail­
able, the writ would be denied. The court retained 
jurisdiction of the cause and continued the case upon 
its docket for six months. December 17, 1946 was set 
as hearing date to determine the then existing facts 
and whether a course in legal instruction equivalent 
to that offered whites at the University of Texas was 
in being and was in fact available to appellant and 
other Negro citizens. Upon the determination of these 
facts, the court was to render its final judgment. (Tr. 
31-32)

On December 17, 1946, appellant and appellees by 
their respective counsel appeared before the court be-



low. Appellees made a motion requesting a denial of 
the writ of mandamus on the grounds that a law school 
equivalent to the law school at the University of Tex­
as was now available and that the state’s obligation 
to afford appellant a course in legal training had been 
met. In support of this motion appellees cited Senate 
Bill No. 228, Chapter 308, page 506, Acts of the 49th 
Legislature 1945, which legislation, appellees alleged, 
placed a mandatory duty upon the Board of Directors 
of the Agricultural and Mechanical College of Texas 
to provide a law course for Negroes at Prairie View 
University equivalent to that being offered whites at 
the University of Texas. Appellees introduced into evi­
dence a resolution of this aforesaid Board of Directors 
of December 4, 1946, the pertinent portions of which 
are set out below. (S. of F. Ex. No. 1 pp. 18-20)

“ THEREFORE, be it resolved

“ 1. That if the applicant and /  or similar other 
applicants for first-year courses in law offer them­
selves to the Registrar at Prairie View University, 
bringing with them a suitable transcript and a cer­
tificate from the Dean of the Law School of the Uni­
versity of Texas that they are scholastically pre­
pared for a course of law equivalent to that given 
at the University of Texas, they will be admitted to 
Prairie View University for the semester beginn­
ing February 1947.

“2. The course will be offered in Houston, Texas 
and will be substantially the same approved course



6

as is now offered by the University of Texas School 
of Law for entering students, and the qualifications 
of the personnel to teach the students will be de­
termined by the State Board of Law Examiners, 
and they will be judged acceptable by it before in­
struction begins.

“ 3. The Board of Directors of A. & M. College, 
through Prairie View University, will provide in­
struction in accordance with the requirements of the 
Supreme Court of Texas and the Amercan Bar As­
sociation, and will provide or make available to the 
students such books or library material as are need­
ed for the first-year course in which they will be 
enrolled. The Governor will be asked for a deficiency 
appropriation to provide the cost of instruction.”

Appellees called only one witness, E. L. Angell, Sec­
retary of the Board of Directors of the Agricultural 
and Mechanical College of Texas. The testimony of 
this witness was solely for the purpose of showing that 
the resolution introduced was in fact an authentic docu­
ment of the Board of Directors of the Agricultural and 
Mechanical College of Texas. (S. of F. 12-13) Under 
cross-examination, this witness admitted that as far 
as he knew, nothing had been done other than the pass­
age of this resolution to actually afford legal training 
in Texas to appellant and other Negroes similarly 
situated. (S. of F. 13)

On the basis of this motion and evidence, final judg­
ment was rendered denying the writ on the grounds 
that “ the court having heard the pleadings, evidence and 
argument of counsel is of the opinion that the said



7

order of June 26, 1946, has been complied with in that 
a law school or legal training substantially equivalent 
to that offered at the University of Texas has now 
been made available to relator and that the relator may 
now obtain legal training within the State at the 
Prairie View University.”  (Tr. 38) To this judgment 
appellant duly excepted and gave notice of appeal. (Tr. 
39)

ARGUMENT AND AUTHORITIES LISTED

It is a well settled principle of American law that 
mandamus will.lie where there is (1) a clear legal right 
in the relator to the enforcement of (2) a clear legal 
duty which respondent is under obligation to but has 
failed to perform, and (3) no other adequate remedy 
is available whereby relator can obtain the relief to 
which he is entitled.1 In the instant ease, appellant has 
a clear legal right to a legal education equivalent to 
that which the state affords to white students at the 
University of Texas.2 The law school at the University

Love v. Wilcox, 119 Tex. 256, 28 S. W. (2d) 515, (1930); Kas- 
prowicz v. Tate, (Tex. Civ. App.), 66 S. W. (2d) 435, (1933); Cross- 
man v. Galveston, 112 Tex. 303, 247 S. W. 810, (1923); United 
States ex rel Girard Trust Co. v. Helvering, 301 U. S. 540, (1937)* 
See on whole point Merrill, Law of Mandamus, 1892, 34 Am Jur’

2. Missouri ex rel Gaines v. Canada, 305 U. S. 337, (1938)- Pear­
ly11 v Murray, 169 Md. 478 182(A) 540, (1936); Johnson v .’ School 
Board, 166 N. C. 468, 82 S. E. 832, (1914); People v. Gallagher
??dE \ Y -J.88’u^  Am‘ Rep- 232> (1883); Warii v- 48 Cal 36,(1874); Mitchell v. United States, 313 U. S. 80, (1941).



8

of Texas is the only State institution in Texas where 
persons, Negro or white, can obtain a legal training. 
(S. of F. No. 10, p. 7) In the absence of a course in 
law equal to that offered at the University of Texas 
being made available to appellant, appellees were under 
a clear legal duty to admit him to the law school o f the 
University of Texas.3 With the failure of appellees to 
perform this duty and there being no other remedy avail­
able whereby appellant can obtain adequate relief, he 
is entitled to the issuance of a mandatory writ compell­
ing appellees to admit him to law school at the Univer­
sity of Texas.4

The court below recognized appellant’s right to the 
writ in its judgment of June 26, 1946, but refused to 
issue same for six months in order to give the State 
time to perform its obligation to appellant by provid­
ing him with a legal education equivalent to that of­
fered at the University of Texas.

3. Missouri ex rel Gaines v. Canada, supra; Pearson v. Murray, 
supra; State ex rel Stoutmeyer v. Duffy, 7 Nev. 342, (1872).

It has long been settled that mandamus is the appropriate remedy 
to compel the admission of a student to a school where it appears 
that he has been wrongfully denied rights to which he is legally 
entitled.

Missouri ex rel Gaines v. Canada, supra; Hughes v. Outlaw, 
197 Ala. 452, 73 So. 16 (1916); Douglass v. Campbell, 89 Ark. 254, 
116 S. W. 211 (1909); People ex rel Bidd v. Alton, 193 111. 309, 61 
N. E. 1077, (1901); State ex rel Stallard v. White, 82 Ind. 698, (1882); 
State ex rel Kelley v. Ferguson, 95 Neb. 63, 144 N. W. 1039 (1914); 
State ex rel Stoutmeyer v. Duffy, supra; State ex rel Dresser v. 
District Board, 135 Wis. 619, 116 N. W. 232, (1903); Pearson v. 
Murray, supra.

*. Missouri ex rel Gaines v. Canada, supra; Pearson v. Murray, 
supra; State ex rel Stoutmeyer v. Duffy, supra.



9

The substance of the Court’s original decree was 
that either a legal education equivalent to that at the 
University of Texas was to be made available to appel­
lant within six months stay granted or appellant would 
be entitled to a writ compelling appellees to admit him 
to the University of Texas. This judgment was in re­
cognition of a well-settled principle of constitutional law 
that where there is a total failure to provide educational 
facilities and training to Negroes that is afforded whites, 
mandamus will lie to compel the school authorities to 
permit Negroes to use the existing facilities.6

Appellant was unquestionably entitled to issuance of 
the writ on June 17, 1946, compelling his admission to 
the University of Texas. Although a court has discre­
tion in issuance of a writ of mandamus, such discre­
tion is not unlimited. The court’s failure to issue the 
writ of mandamus after the initial hearing was clearly 
erroneous and an abuse of its discretional authority. 
At that hearing appellant had shown an undisputed 
right to the issuance of the writ compelling his admis­
sion to the law school at the University of Texas, and 
the writ should have issued as of that date.6

Certainly, in the absence of a change in circumstances, 
appellant was doubly entitled to the issuance of the

5. Missouri ex rel Gaines v. Canada, supra; Pearson v. Murray, 
supra; State ex rel Stoutmeyer v. Duffy, supra.

6. See Missouri ex rel Gaines v. Canada, supra; Pearson v. Murray, 
supra.



10

mandatory writ on December 17, 1946, compelling his 
admission to the law school at the University of Texas. 
Aside from the controlling principles of law, discussed 
supra, which establish beyond question appellant’s right 
to mandatory remedy, the very terms of the order of 
the court on June 17, 1946, under which it retained 
jurisdiction of and continued the cause for a period of 
six months required the issuance of the writ against 
appellees on December 17, 1946, ordering them to admit 
appellant to the law school at the University of Texas.

The original judgment of June 17, 1946, stated in 
part as follows:

“IT IS THEREFORE ORDERED that no writ 
of mandamus issue at this time and that if within 
six months from the date hereof a course for legal 
instruction substantially equivalent to that offered 
at the University of Texas is established and made 
available to the relator within the State of Texas 
in an educational institution supported by said 
State, the writ of mandamus sought herein will 
be denied, but if such a course of legal instruction is 
not so established and made available, the writ of 
mandamus will issue, and it is further ordered that 
this court retain jurisdiction of this cause; and 
that this cause be continued upon the docket of this 
court from term to term; and that at the expiration 
of said six months’ period, to-wit, on the 17th day 
of December, 1946, at 10 o’clock a. m., a hearing 
will be held to determine the then existing facts and 
whether said Law School has or has not been estab­
lished, whereupon the Court will enter its final 
order herein.”  (Tr. 31-32)



11

The terms of this order are clear and unequivocal. 
If no legal training equivalent to that offered at the 
University of Texas was ready and available for appel­
lant on December 17, 1946, a mandatory writ would 
on that date issue from the court compelling appellees 
to admit appellant to the University of Texas. There is 
no question but that a person will be entitled to such 
a mandatory remedy where it is shown that he is de­
nied admission to the law school maintained by a state 
because of race or color, although duly qualified for 
admission thereto, and the state does not offer at any 
other institution a course in law equivalent to that 
afforded at the aforesaid state law school.7 This has 
been the consistent interpretation of the Fourteenth 
Amendment by American courts.8 Hence, the Constitu­
tion of the United States and the specific terms of the 
lower court’s June 26, 1946 order at the very least 
required that appellant be admitted to the University 
of Texas on December 17, 1946, if the State had not 
made available to him a course in law equivalent to that 
afforded white persons at the University of Texas.

At the June 17 trial in the court below, appellant made 
out a prima facie case showing that the mandatory

7. Missouri ex rel Gaines v. Canada, supra, Pearson v. Murray, 
supra.

s. Ward v. Flood, supra; People v. Gallager, supra; Johnson v. 
School Board, supra; Gong Lum v. Rice, 275 U. S. 78 (1928); and 
cases cited in Footnote 7, supra. See also Alston v. Norfolk School 
Board, 112 F. (2d) (C. C. A. 4th, 1940) cert. den. 311 U. S. 693 
(1940); Mitchell v. United States, supra.



12

writ should issue to secure his admission to the Uni­
versity of Texas. The burden of proof thereupon shift­
ed to appellees to vindicate their conduct.9 This well- 
recognized rule of procedure is required by Texas 
courts.18

Appellant has established his right to attend the Uni­
versity of Texas. Appellees defend on the ground that 
separate but equal facilities for legal training are now 
available and for that reason the writ herein sought 
should be denied. Even under this theory, appellant was 
entitled to issuance of the writ unless appellees proved 
by competent evidence (1) the existence of a law school 
maintained by the state, (2) equivalent to that at the 
University of Texas and (3) available to appellant. 
This requirement appellees have failed to meet and the 
mandatory writ sought should have issued forthwith.

Failing to prove that such facilities were in fact in 
being, operative, available to appellant and equivalent 
to the law school at the University of Texas, appellant’s 
right to issuance of the writ remained uncontrovert­
ed.11 No evidence to prove such facts were presented

9. 35 Am. Jur. Sec. 377, at 115 “  . . .Where, however, (in man­
damus proceedings) the right and duty appears, the burden of 
proving matter set up by way of excuse for failure to act, or of 
justifying such failure to act, rests upon the respondent or defendant.”  
35 Am. Jur. Sec. 377, at p. 115 “ To the same effect see 38 C. J. 
Sec. 671 at 915; Ex parte Newman, 14 wall 152, 20 L. Ed. 877 
(1871); See also Missouri ex rel Gaines v. Canada, supra; Pearson 
v. Murray, supra.

10. Ridgeway v. City of Ft. Worth, 243 S. W. 704 (1922); 
v. Woodward, (Tex. Civ. App) 241 S. W. 1117, 1922.

“ • Citation in Footnote “9” and “10” supra.

Aiken



13

and the Court’s statement that “ a law school or legal 
training substantially equivalent to that offered at the 
University of Texas has now been made available to 
relator . is without vestige of foundation.

On the contrary the evidence presented at the Decem­
ber 17th hearing proves that no such law school is in 
existence. The only evidence appellees produced was 
a resolution of dubious legality of the Board of Direc­
tors of the Agricultural and Mechanical College of Tex­
as to the effect that legal training would be made 
available to Negroes at some future date and that the 
Governor would be asked to make a deficiency appro­
priation for that purpose. This resolution itself denies 
the present reality of a law school for Negroes in Tex­
as.

There was no evidence presented by appellees to show 
that between June 17, 1946 and December 17, 1946 (1) 
a law school plant had actually been secured; (2) no 
evidence as to the size of this purported law school, or 
what facilities or equipment consisted of; (3) no evi­
dence as to the size and extent of its library facilities;
(4) no evidence as to its faculty or proposed curriculum;
(5) no evidence that the funds available as of June 
17, 1946 (S. of F. No. 22, p. 11) for establishment of 
a law school for Negroes had been used, was in fact 
being used, or was now available for that purpose; and
(6) no evidence of any bulletin announcements or other



14

tangible evidence to actually show that a proposed law 
school was in fact now available.

As we have seen supra, Texas procedure requires that 
when in a mandamus proceeding relator establishes by 
pleadings and evidence a prima facie case, the writ 
sought will issue unless respondents present evidence 
of a state of facts to justify their conduct.12 Without 
doubt, therefore, the denial of the writ by the court 
below without requisite proof of the existence of law 
facilities equivalent to the law school at the University 
of Texas and availability of such facilities to appellant 
was erroneous and should be reversed.13

SECOND POINT

THE ERROR OF THE COURT IN HOLDING THAT 
THE COURT’S ORDER OF JUNE 26, 1946 HAD 
BEEN COMPLIED WITH. (Second point restated)

STATEMENT

The facts in the case are undisputed and appear in 
THE STATEMENT OF FACTS, (pages 5-11) On the 
26th day of June 1946, judgment of the court was en­
tered holding that the appellant was scholastically 
qualified for admission to the first year law class of

« .  Id. 
1S. Id.



15

the University of Texas and had applied for admission 
to that school on the 26th day of February, 1946, and 
was denied admission by appellees solely on account of 
his race or color and that the appellees were duly ap­
pointed and administrative officers of the State of Tex­
as with authority to admit qualified applicants to the 
law school of the University of Texas. Judgment of 
the court also held that the State of Texas through its 
administrative agents had provided for courses in law 
and for facilities for teaching the same at the Univer­
sity of Texas for persons of the white race and that 
no provision had been made for the course of law and 
the facilities for teaching the same for Negroes sub­
stantially equivalent to those offered at the University 
of Texas. (Tr. 29-30)

The Court further held “that the denial of relator’s 
application by respondents was a denial to the relator’s 
equal protection of laws for the reason that no provision 
has been made for courses in law and facilities for 
teaching the same for persons of African descent and 
of Negro blood at any school within the State of Texas 
supported by public funds while the courses of law and 
the facilities for teaching the same have been afforded 
to persons of the white or Caucasian race.”  (Tr. 31)

The Court, however, declined to issue a writ of man­
damus at that time but allowed six months from the 
date of the order to give the State of Texas an appor- 
tunity to provide for equal educational opportunities



16

for appellant, stating that “if within six months from 
the date hereof a course for legal instruction substan­
tially equivalent to that afforded at the University of 
Texas is established and made available to the relator 
within the State of Texas, in an educational institution 
supported by said state, the writ of mandamus sought 
herein will be denied, but if such a course of legal in­
struction is not so established and made available the 
writ of mandamus will issue.” (Tr. 31)

The order finally provided that with the expiration 
of the six months period, “a hearing will be held to 
determine the then existing facts and whether said law 
school has or has not been established.” (Tr. 32)

At the subsequent hearing on the 17th day of Decem­
ber, 1946 appellees filed a “Motion Showing Availa­
bility of Law School and Requesting Denial of Writ of 
Mandamus.” This motion is set out in the transcript, 
pages 33-36, and the exhibit to said motion appears 
in the Statement of Facts, pages 15-21.

Appellees’ motion requested dismissal of the action 
on the ground that the Court’s order had been com­
plied with in that the State of Texas was then offering 
to qualified Negroes separate law school training sub­
stantially equivalent to that offered white students 
at the University of Texas. Respondents’ Exhibit No. 
1 (S. of F. 18) provides that the proposed law school 
to be established at “Prairie View University” is to



17

be under the supervision of the “ Board of Directors of
A. and M. College through Prairie View University.” 
The resolution was adopted by the Board of Directors 
of A. and M. College.

ARGUMENT AND AUTHORITIES LISTED

The case of Missouri ex rel Gaines v. Canada, 305 U.
S. 337, p. 349:

“ The admissibility of laws separating the races 
in the enjoyment of privileges afforded by the State 
rests wholly upon the quality of the privileges which 
the laws give to the separated groups within the 
State.”

There is in existence in Texas today a law school at 
the University of Texas authorized and protected by the 
Constitution of the State of Texas. There is no provi­
sion in the Constitution of Texas for the establishment 
of a separate university for Negroes legally competent 
to maintain a law school for Negroes.

Senate Bill 228 of the 49th Legislature changed the 
name of Prairie View State Normal and Industrial
College to “ Prairie View University.”  The bill also pro­
vides that:

“ Whenever there is any demand for same, the 
Board of Directors of the Agricultural and Mechani­
cal College in addition to the courses of study now 
authorized for said institution, is authorized to 
provide for the establishment of courses in law, 
medicine, engineering, pharmacy, journalism, or



18

any other generally recognized college course taught 
at the University of Texas, in said Prairie View 
University, which courses shall be substantially 
equivalent to those offered at the University of 
Texas.”

It is therefore clear that under the present set up 
the so-called law school at the so-called Prairie View 
University is to be created under the supervision of 
Texas A. & M. College. The action of the Legislature 
in enacting Senate Bill 228 and the action of the Board 
of Directors of A. &  M. College is directly contrary to 
intent of the Constitution of Texas. Article VII of the 
Constitution of Texas provides for three schools1 on the 
collegiate level as follows:

1. The prior legislative enactments concerning collegiate train­
ing in Texas are as follows:

“ On January 26, 1839, the Legislature o f the State of Texas 
set aside fifty  (50) leagues of public land for the purpose of 
supporting two (2) colleges or universities of a first class. There­
after, on February 11, 1858, the Seventh (7th) Legislature o f the 
State o f Texas enacted, Article 2746 of the Revised Civil Statutes, 
styled and known as the “ Act to Establish the University o f Texas.” 
The property appropriated under the Act of 1838 for two (2) colleges 
or universities was set aside and dedicated to the support of the 
University of Texas, thereby taking from all other educational 
institutions, the right to receive any portion of the revenue de­
rived from the fifty (50) leagues of land set aside in 1839, except 
the University o f Texas and the branches thereof.

“ On April 17, 1871, the Twelfth (12th) Legislature of the State 
o f Texas passed Article 3534 of the Revised Civil Statutes of the 
State o f Texas. This Act was styled “ An Act to Create the Agri­
cultural and Mechanical College of the State of Texas.”  Section 
five (5) o f the Act placed the control and management of the 
Texas Agricultural and Mechanical College under the control and 
management of the University of Texas, and, by the same Act, 
the Texas Agricultural and Mechanical College was made a branch 
o f the University o f Texas. The Agricultural and Mechanical 
College o f Texas received a Federal Grant, to-wit: 100,000 acres of 
public land This Grant was made conditioned upon the Texas 
Agricultural and Mechanical College being established on or be­
fore the year, 1871.



19

UNIVERSITY OF TEXAS
Section 10:

“The Legislature shall as soon as practicable 
establish, organize and provide for the maintenance, 
support and direction of a university of the first 
class, to be located by a vote of the people of this 
State, and styled, ‘The University of Texas,’ for 
the promotion of literature, and the arts and 
sciences, including an agricultural, and mechanical 
department.”

TEXAS A. & M. COLLEGE
Section 13:

“The Agricultural and Mechanical College of 
Texas, established by an act of the Legislature pass­
ed April 18, 1871, located in the county of Brazos, 
is hereby made, and constituted a branch of the 
University of Texas, for instruction in agriculture, 
the mechanic arts, and the natural sciences con­
nected therewith. And the Legislature shall at its 
next session, make an appropriation, not to exceed 
forty thousand dollars, for the construction and 
completion of the buildings and improvements, and 
for providing the furniture necessary to put said 
college in immediate and successful operation.”

PRAIRIE VIEW COLLEGE
Section 1U:

“ The Legislature shall also when deemed practi­
cable, establish and provide for the maintenance of 
a college or branch university for the instruction



20

of tlie colored youths of the State, to be located by a 
vote of the people ; provided, that no tax shall be 
levied, and no money appropriated, out of the gen­
eral revenue, either for this purpose or for the 
establishment, and erection of the buildings of the 
University of Texas.”

It is clear from these provisions of the Constitution of 
Texas it was intended that there should be a Univer­
sity of Texas with power and authority to maintain, 
“ a university of the first class . . . for the promotion 
of literature and the arts and sciences including an 
agricultural and mechanical department.”  It is like­
wise clear that under the Constitution of Texas the 
Agricultural and Mechanical College is specifically 
limited to “ Instruction in agriculture, the mechanic arts 
and the natural sciences connected therewith.” The 
University of Texas is authorized to provide for educa­
tion in all of the arts and sciences and the agricultural 
and mechanical departments. Texas A. & M. College is 
specifically limited to agriculture and mechanical arts. 
Therefore all efforts on the part of the State Legisla­
ture to provide for education in law must be delegated 
to the University of Texas and cannot constitutionally 
be delegated to Texas A. & M. College which has no 
constitutional authority to provide for legal education 
now being constitutionally offered at the law school of 
the University of Texas. »

The action of the state legislature in establishing 
“ Prairie View University” was illegal because it was



21

in direct violation of the clear intent of the Constitution 
of Texas. The purported action of the Board of Direc­
tors of A. & M. College was ultra vires.

Clear indication of the true intent of the legislature 
of the State of Texas not to provide separate but equal 
educational facilities for Negroes in higher education 
appears in the record of the 49th Regular Session. On 
May 28, 1945 the legislature adopted H.B. No. 175 
(Chapter 377, Acts 1945), which provided an appro­
priation for 1946 of $410,902.00 for Prairie View State 
Normal and Industrial College which is the only state 
institution in Texas for higher education of Negroes 
The amount appropriated for Prairie View was ap­
proximately 3.2% of $12,818,875.00 for higher educa­
tion of citizens of Texas. Two days thereafter, on May 
30th, the Legislature adopted S.B. No. 228 (chapter 
308, Acts 1945), changing the name of Prairie View 
State Normal and Industrial College for Colored Teach­
ers to “Prairie View University” which was “ authorized 
to provide for the establishment of courses in law, 
medicine, engineering, pharmacy, journalism, or any 
other generally recognized college course taught at the 
University of Texas.” Although the statute which 
changed the name of Prairie View admitted that at the 
time of the passage of the Act “ There is no adequate 
educational facilities for the education of the colored 
population of this state, it is significant beyond words 
that no additional appropriation appears to have been



made for any of the purported new courses to be taught 
at “Prairie View University.”

THIRD POINT

THE ERROR OF THE COURT IN DENYING WRIT 
OF MANDAMUS ON THE GROUND THAT THE 
PURPORTED PROVISION FOR LEGAL TRAINING 
AT “PRAIRIE VIEW UNIVERSITY” MET THE RE­
QUIREMENTS OF THE UNITED STATES CONSTI­
TUTION. (Third Point Restated)

STATEMENT

The Court in its final judgment pointed out that “ the 
court is of the opinion that provision for legal training 
for the relator at said Prairie View University does 
not constitute any abridgement or denial of his consti­
tutional rights.”  (Tr. 39)

At the time the first judgment was entered in this 
case there was only one law school in existence being 
maintained by the State of Texas, i. e. the law school at 
the University of Texas (Tr. 31) At the time of the 
final judgment in this case there was no material change 
in circumstances. The minutes of the Board of Direc­
tors of the Agricultural and Mechanical College of Tex­
as for November 27, 1946, more than five months after 
the first judgment and twenty days prior to the final 
hearing, pointed out that “ arrangements may be made



23

for standard courses of first-year law to be given in 
Houston, Texas, with qualified Negro lawyers as teach­
ers” (S. of F. 19— italics ours).

There is no evidence in this case even purporting 
to show the actual existence of any law school for 
Negroes in Texas other than the one at the University 
of Texas to which appellant applied and was refused 
admission by appellee solely because of his race and 
color.

ARGUMENT AND AUTHORITIES LISTED

I.

The refusal to admit appellant to the School of law 
of the University of Texas constitutes a denial of rights 
secured under the Fourteenth Amendment.

A. Distinctions on the Basis of Race and Color 
Are Forbidden Under Our Laws.

One of the most firmly entrenched principles of 
American constitutional law is that discrimination by 
a state based on race and color contravenes the federal 
constitution. The 13th, 14th and 15th Amendments were 
specifically added to the Constitution to give Negroes 
full citizenship rights and to bar any future efforts to 
alter their status in that regard.1 The Court stated in 
Strauder v. Virginia:

h Flack, The Adoption of the Fourteenth Amendment (1908).



24

“ This is one of a series of constitutional pro­
visions having a common purpose, namely: securing 
to a race recently emancipated, a race that through 
many generations had been held in slavery, all the 
civil rights that the superior race enjoy. The true 
spirit and meaning of the Amendments * * * can­
not be understood without keeping in view the his­
tory of the times when they were adopted, and the 
general objects they plainly sought to accomplish. 
At the time when they were incorporated into the 
Constitution, it required little knowledge of human 
nature to anticipate that those who had long been 
regarded as an inferior and subject race would, 
when suddenly raised to the rank of citizenship, be 
looked upon with jealousy and positive dislike, and 
that state laws might be enacted or enforced to 
perpetuate the distinctions that had before existed. 
Discriminations against them had been habitual 
It was well known that, in some States, laws making 
such discriminations then existed, and others might 
well be expected.”
*  *  *  *  *

“ . . . [the 14th Amendment] was designed to 
assure to the colored race the enjoyment of all the 
civil -rights that under the law are enjoyed by white 
persons, and to give to that race the protection of 
the General Government, in that enjoyment, -when­
ever it should be denied by the States. It not only 
gave citizenship and the privileges of citizenship to 
persons of color, but it denied to any State the power 
to withhold from them the equal protection of the 
laws, and authorized Congress to enforce its provi­
sions by appropriate legislation.”



25

“ If this is the spirit and meaning of the Amend­
ment, whether it means more or not, it is to be con­
strued liberally, to carry out the purposes of its 
framers. It ordains that no State shall make or 
enforce any laws which shall abridge the privileges 
or immunities of citizens of the United States * * *. 
It ordains that no State shall deprive any person 
of life, liberty or property, without due process of 
law, or deny to any person within its jurisdiction the 
equal protection of the laws. What is this but declar­
ing that the law in the States shall be the same for 
the black as for the white; that all persons whether 
colored or white, shall stand equal before the laws 
of the States and, in regard to the colored race, for 
whose protection the Amendment was primarily de­
signed, that no discrimination shall be made against 
them by law because of their color? The words of 
the Amendment, it is true, are prohibitory, but they 
contain a necessary implication of a positive immun­
ity, or right, most valuable to the colored race— the 
right to exemption from unfriendly legislation 
against them distinctively as colored; exemption 
from legal discriminations, implying inferiority in 
civil society, lessening the security of their enjoy­
ment of the rights which others enjoy, and discrim­
inations which are steps towards reducing them to 
the condition of a subject race.” 2 *

The express guarantees against discrimination on the 
basis of race and color run only against the states, but 
these guarantees are considered so fundamental to our

2. 100 U. S. 303, 306, 307 (1879); see to same effect The Slaughter
House Cases, 16 Wall. (U. S.) 36 (1873); Ex parte Virginia, 100 
U. S. 339 (1879).



26

political and social health that even in the absence of 
express constitutional prohibitions, the federal govern­
ment is prohibited from making any classifications and 
distinctions on the basis of race and color. They are re­
garded as arbitrary, unreasonable, constitutionality ir­
relevant and, therefore, violative of the 5th amendment.3

The United States Supreme Court, and American 
courts in general, in giving life and substance to these 
abstract constitutional guarantees have been required to 
strike down statutes and governmental action in deroga­
tion thereof without regard to local racial customs and 
practices requiring such color classification.4

B. The Rational Basis for the Equal But Sepa­
rate Doctrine Is That Although a State May 
Require Segregation, Equality Must Be Af­
forded Under the Segregation System.

History has proved that democracy can flourish only 
when its citizens are enlightened and intelligent. For this 
reason, the states, even though under no obligation to

3. Hirabayashi v. United States. 320 U. S. 81 (1943); Korematsu 
v. United States, 323 U. S. 214 (1944); Ex parte Endo, 323 JJ. S. 
283 (1944); see also Steele v. Louisville and Nashville R. Co., 323 
U. S. 192 (1944); Tunstall v. Brotherhood o f Locomotive Firemen, 
323 U. S. 210 (1944).

4. Ex parte Virginia, 100 U. S. 339 (1879); Tick Wo v. Hopkins, 
118 U. S. 356 (1886); Buchanan v. Warley, 245 U. S. 60 (1917); 
Missouri ex rel Gaines v. Canada, 305 U. S. 337 (1938); Pierre v. 
Louisiana, 306 U. S. 354 (1939); Hill v. Texas, 316 U. S. 400 (1942); 
Alston v.Norfolk School Board, 112 F. (2d) 992 (C. C. A. 4th, 1940); 
cert den. 311 U. S. 693 (1940); Smith v. Allwright, 321 U. S. 694 
(1944).



27

do so, have almost uniformly undertaken the task of 
providing free education through the elementary and 
high school level, and education through the college and 
professional level at minimum cost to the individual. 
Having voluntarily undertaken to provide such oppor­
tunities, our Constitution and laws require that such op­
portunities be afforded to all persons without regard 
to racial distinctions.3 * *

Texas along with sixteen other states and the Dis­
trict of Columbia has established an educational system 
on a segregated basis, with schools set aside for the ex­
clusive attendance of Negroes.6 This enforced segrega­
tion has been regarded by some American courts as not 
in conflict with the requirements of the 14th Amend­
ment as long as the facilities afforded are equal to those 
afforded whites.7 The United States Supreme Court has 
never directly decided whether this view constituted a 
proper interpretation of the Constitution but has given

•"'.Pearson v. Murray, 169 Md. 478, 182 A. 590 (1936); Missouri 
ex rel. Gaines v. Canada, 305 U. S. 337 (1938); see also Gong Lum
v. Rice, 275 U. S. 78 (1927); Ward v. Flood, 48 Cal. 36, 17 Am.
Rep 405 (1874); People v. Gallagher, 93 N. Y. 438, 45 Am. Rep. 
232 (1883); see also Mitchell v. United States, 313 U. S. 80 (1941).

6. Alabama, Arkansas, Delaware. Florida, Georgia, Kentucky, 
Louisiana, Maryland, Mississippi, Missouri, North Carolina, Okla­
homa, South Carolina, Tennessee, Texas, Virginia and West Virginia.

7. Johnson v. School Board, 166 N. C. 468, 8 2  S. E. 832 (1914);
and cases cited in note 5, supra. Annotations on the question, 27 L. 
Ed. 836 and 44 L. Ed. 262.



28

some indication that it is in agreement with this state­
ment of the law.8

The apparent rationalization for this rule is that the 
states will provide equal educational opportunities for 
Negroes under a segregated system and that therefore 
such segregation does not amount to discrimination or a 
denial of equal protection within the meaning of the 14th 
Amendment. Appellant contends that this “ equal but 
separate”  doctrine defeats the ends which the 14th 
Amendment was intended to achieve. If the guarantees 
of this amendment are to be given life, substance and 
vitality, American courts will have to recognize that

8. In Plessy v. Ferguson, 163 U. S. 537 (1896) in sustaining the 
constitutionality o f a Louisiana statute requiring intrastate railroads 
to furnish separate but equal coach accommodations for whites and 
Negroes, the United States Supreme Court cited with approval Ward 
v. Flood, People v. Gallagher, supra note 5 and Roberts v. City of 
Boston, 5 Cush (Mass.) 198 (1849) which held that a state could 
require segregation of the races in its educational system as long as 
equal facilities for Negroes were provided. In Gong Lum v. Rice, 
275 U. S. 78, 85 (1927) in passing upon the right o f a state to classi­
fy  Chinese as colored and force them to attend schools set aside for 
Negroes the Court assumed that the question of the right of a state 
to segregate the races in its educational system had been settled in 
favor of the state by previous Supreme Court decisions. In Missouri 
ex rel. Gaines v. Canada, 305 U. S. 337, 344 (1938) the Court said 
obiter dicta that right of a state to provide Negroes with educa­
tional advantages in separate schools equal to that provided whites 
had been sustained by previous Supreme Court decisions. In Mitchell 
v. United States, 313 U. S. 80 (1941) the Court continued to uphold 
the validity o f the equal but separate doctrine as applied to trans­
portation facilities. But in Buchanan v. Warley, 245 U. S. 60 (1917) 
a city ordinance which attempted to enforce residential segregation 
was struck down as violating the 14th Amendment, and, in general 
the Supreme Court has invalidated state action where it found that 
race or color was used as a criteria as evidenced by cases cited in 
not 4. The key to the difference in approach would seem to lay 
in Plessy v. Ferguson, supra, which involved transportation and 
used state cases upholding segregation in the state’s educational 
system to support argument that segregation in transportation was 
valid.



29

segregation itself amounts to an unlawful discrimina­
tion within the meaning of the 14th Amendment.

C. Equality Under a Segregated System Is a 
Legal Fiction and a Judicial Myth.

There is of course a dictionary difference between the 
terms segregation and discrimination. In actual prac­
tice, however, this difference disappears. Those states 
which segregate by statute in the educational system 
have been primarily concerned with keeping the two 
races apart and have uniformly disregarded even their 
own interpretation of their requirements under the 14th 
Amendment to maintain the separate facilities on an 
equal basis.

1. The General Inequities in Public Educational 
Systems Where Segregation Is Required.

Racial segregation in education originated as a device 
to “keep the Negro in his place” , i. e,, in a constantly in­
ferior position. The continuance of segregation has been 
synonymous with unfair discrimination. The perpetua­
tion of the principle of segregation, even under the 
euphemistic theory of “ separate but equal” , has been 
tantamount to the perpetuation of discriminatory prac­
tices. The terms “ separate” and “ equal” can not be 
used conjunctively in ,a situation of this kind; there can 
be no separate equality.



30

Nor can segregation of white and Negro in the matter 
of education facilities be justified by the glib statement 
that it is required by social custom and usage and gen­
erally accepted by the “ society” of certain geographical 
areas. Of course there are some types of physical separa­
tion which do not amount to discrimination. No one 
would question the separation of certain facilities for 
men and women, for old and young, for healthy and 
sick. Yet in these cases no one group has any reason 
to feel aggrieved even if the other group receives sepa­
rate and even preferential treatment. There is no en­
forcement of an inferior status.

This decidedly is not the case when Negroes are segre­
gated in separate schools. Negroes cure aggrieved; they 
are discriminated against; they are relegated to an in­
ferior position because the entire device of educational 
segregation has been used historically and is being used 
at present to deny equality of educational opportunity 
to Negroes. This is clearly demonstrated by the statis­
tical evidence which follows.

The taxpayers’ dollar for public education in the 17 
states and the District of Columbia which practice com­
pulsory racial segregation was so appropriated as to de­
prive the Negro schools of an equitable share of federal, 
state, county and municipal funds. The average expense 
per white pupil in nine Southern states reporting to the



31

U. S. Office of Education in 1939-1940 was almost 212%
greater than the average expense per Negro pupil.9 Only 
$18.82 was spent per Negro pupil, while the same aver­
age per white pupil was $58.69.10

Proportionate allocation of tax monies is only one cri­
terion of equal citizenship rights, although an important 
one. By every other index of the quality and quantity 
of educational facilities, the record of those states where 
segregation is a part of public educational policy clearly 
demonstrates the inequities and second class citizenship 
such a policy creates. For example, these states in 1939- 
1940 gave whites an average of 171 days of schooling 
per school term. Negroes received an average of only 
156 days.11 The average salary for a white teacher was 
$1,046 a year. The average Negro teacher’s salary was 
only $601.12

The experience of. the Selective Service administration 
during the war provides evidence that the educational 
inequities created by a policy of segregation not only 
deprive the individual Negro citizens of the skills neces­
sary to a civilized existence and the Negro community of 
the leadership and professional services it so urgently

9. Statistics of the Education of Negroes (A  Decade o f Progress) 
by David T. Blose and Ambrose Caliver (Federal Security Agency, 
U. S. Office of Education, 1943). Part I, Table 6, p. 6.

10. Ibid, Table 8.

“ • Biennial Surveys of Education in the United States. Statistics 
o f State School Systems, 1939-40 and 1941-42 (1944), p. 36.

12. Blose and Caliver, op. cit., supra note 9, Part I, p. 6, Table 7.



32

needs, but also deprive the state and nation of the full 
potential embodied in the intellectual and physical re­
sources of its Negro citizens. In the most critical period 
of June-July 1943, when the nation was desperately short 
of manpower, 34.5% of the rejections of Negroes from 
the armed forces were for educational deficiencies. Only 
8% of the white, selectees rejected for military service 
failed to meet the educational standards measured by 
the Selective Service tests.13

Lest there be any doubt that this generalization ap­
plies to Texas as well, let us look at the same data for 
the same period with respect to this state. We find that 
20.5% of the Negro rejections were for educational de­
ficiency, while only 10.4% of the white rejections were 
for this reason.14

This demonstration of the effects of inequitable segre­
gation in education dramatizes one of the key issues 
which this Court must decide. Failure to provide Negroes 
with equal educational facilities has resulted in depriva­
tions to the state and nation as well as to the Negro 
population. The Constitution establishes a set of princi­
ples to guide human conduct to higher levels. If the 
courts reject the theory of accepting the lowest common 
denominator of behavior because this standard is so

13. The Black and White o f Rejections for Military Service. Mont­
gomery, Ala., American Teachers Association (1944), p. 6.

14. Ibid.



33

blatantly detrimental to the individual citizen, to the 
state, and to the nation as a whole—then they will be 
exercising the power which the Constitution has vested 
in them for the protection of the basic values of our 
society.

2. On the Professional School Level the Inequi­
ties Are Even More Glaring.

As gross as is the discrimination in elementary educa­
tion, the failure to provide equal educational opportuni­
ties on the professional levels is proportionately far grea­
ter. Failure to admit Negroes into professional schools 
has created a dearth of professional talent among the 
Negro population. It has also deprived the Negro popu­
lation of urgently needed professional services. It has 
resulted in a denial of equal access to such services to 
the Negro population even an a “separate” basis.

In Texas, the results of the legal as well as the extra- 
legal policies of educational discrimination have depriv­
ed the Negro population of professional services in the 
fields of medicine, dentistry and law. The extent of this 
deprivation can best be judged by the following data, in 
which the figures represent one lawyer, doctor and den­
tist, respectively, to the following number of white and 
Negro population:15

15. Based on data in Sixteenth Census of the United States: Popu­
lation, Vol. III, Part 4, Reports by States (1940).



34

Profession White Negro
Law .................... ...........  709 40,191
Medicine .............. ...........  901 5,637
Dentistry ........... ....... .... 2,621 10,875

That this critical situation is not peculiar to Texas 
alone but is an inevitable result of the policy of racial 
segregation and discrimination in education is demon­
strated by an analysis made by Dr. Charles H. Thomp­
son.16 He states that:

“ In 1940 there were 160,845 white and 3,524 
Negro physicians and surgeons in the United States. 
In proportion to population these represented one 
physician to the following number of the white and 
Negro population, respectively:

Section White Negro
U. S................................  735 3,651
North ............................ 695 1,800*
South ............................ 859 5,300*
West ............   717 2,000*
Mississippi ...................  4,294 20,000*

“ A similar situation existed in the field of den­
tistry, as far as the 67,470 white and 1,463 Negro 
dentists were concerned:

16- Charles H. Thompson, “ Some Critical Aspects of the Problem 
of the Higher and Professional Education for Negroes,” Journal of 
Negro Education (Fall 1945), pp. 511-512.

* To the nearest hundred.



35

Section White Negro
U. S..............................  1,752 8,800*
North ......................  1,555 3,900*
South .........................  2,790 14,000*
West .............................  1,475 3,900*
Miss.................................. 14,190 37,000*

“ In proportion to population there are five times 
as many doctors and dentists in the country as a 
whole as there are Negro doctors and dentists; and 
in the South, six times as many. Even in the North 
and West where we find more Negro doctors and 
dentists in the large urban centers, there are two 
and one-half times as many white dentists and doc­
tors as Negro.

“Law-— in 1940 there were 176,475 white and 
1,052 Negro lawyers in the U. S. distributed in pro­
portion to population as follows:

Section White Negro
U. S..............................  670 12,230
North ...................   649 4,000*
South .........................  711 30,000*
West .................. ........... 699 4,000*
Miss..............................  4,234 358,000*

“ There are 18 times as many white lawyers as 
Negro lawyers in the country as a whole; 45 times 
as many in the South; and 90 times as many in Mis­
sissippi. Even in the North and West there are six 
times as many white lawyers as Negro. With the 
exception of engineering, the greatest disparity is 
found in law.”  (Italics ours.)

* To the nearest hundred or thousand.



36

The professional skills developed through graduate 
training are among the most important elements of our 
society. Their importance is so great as to be almost self- 
evident. Doctors and dentists guard the health of their 
people. Lawyers guide their relationships in a complicat­
ed society. Engineers create and service the technology 
that has been bringing more and more good to more and 
more people. Teachers pass on skills and knowledge from 
one generation to another. Social service workers minis­
ter to the needs of the less fortunate groups in society 
and reduce the amount of personal hardship, deprivation, 
and social friction.

Yet the action of the lower Court in this case, quite 
aside from any legal considerations, lends the sanction 
of that Court to a series of extra-legal actions by which 
the various states have carried on ia policy of discrimina­
tion in education. In Texas, the 16 other states and the 
District of Columbia where separate educational facili­
ties for whites and Negroes are mandatory, the provis­
ions for higher education for Negroes are so inadequate 
as to deprive the Negro population of vital professional 
services.

The record of this policy of educational segregation 
and denial of professional education to Negroes is clear. 
In the 17 states and the District of Columbia in 1939- 
1940 the following number of states made provisions for



37

the public professional education of Negro and white 
students :17

Profession White Negro
Medicine ....................... .... 15 0
Dentistry ................ «... ....  4 0
Law ............................. .... 16 1
Engineering................ ....  17 0
Social service...... -....... ....  9 0
Library science .......... ....  13 1
Pharmacy.................... ....  14 0

The result has been that the qualified Negro student is 
unable to obtain the professional education for which he 
may be fitted by aptitude and training.

Other sections of the country, too, practice discrimina­
tion against Negroes in professional schools by means of 
“quotas” and other devices.18 But only in the South is

17. Based on data in National Survey of Higher Education for 
Negros, Vol. II, p. 15.

1S. “ Wherever young Americans o f ‘minority’ races and religions 
are denied, by the open or secret application of a quota system, the 
opportunity to obtain a medical, law or engineering education, apolo­
gists for the system have a standardized justification.

“ In their racial-religious composition, the apologists contend, the 
professions must maintain ratios which correspond to those found in 
the composition of the whole population. Where the institution of 
higher learning left wide open to ambition and sheer merit, they 
argue, the professions would be ‘unbalanced’ by a disproportionate 
influx of Catholics, Negroes and Jews.

“ Such racial arithmetic hardly accords with our vaunted prin­
ciples of democratic equality. In effect it establishes categories of 
citizenship. It discriminates against tens of millions of citizens by 
denying their sons and daughters a free and equal choice of profes­
sion. If a ratio must be imposed on the basis of race, why not on the 
pigmentation? Forcing a potentially great surgeon to take up some 
other trade makes sense only on the voodoo level of murky prejudice.



38

legal discrimination practiced and it is thus in the South 
that the Negro population suffers the greatest depriva­
tion of professional sendees.

The record is quite clear, and the implications of the 
above data are obvious. There is another implication, 
however, which is not as obvious but is of almost equal 
importance in the long-range development of the Negro 
people. From the ranks of the educated professionals 
come the leaders of a minority people. In the course of 
their daily duties they transmit their skills and know­
ledge to the people they serve. They create by their daily 
activities a better, more enlightened citizenship because 
they transmit knowledge about health, personal care, 
social relationships and respect for and confidence in 
the law.

The average Negro in the South looks up to the Negro 
professional with a respect that sometimes verges on 
awe. It is frequently the Negro professional who is able 
to articulate the hopes and aspirations of his peoples. 
The appellees, in denying the appellant access to equal 
educational facilities on the professional level within the 
State, also deny to the Negro population of Texas equal 
access to professional services and deprive it of one of 
the most important sources of guidance in citizenship.

It not only deprives the citizen of his legal and human rights but, no 
less important, it deprives the country of his potentially valuable ser­
vices.”—from “ Religious Prejudices in Colleges,” by Dan W. Dodson. 
The American Mercury (July 1946), p. 5.



39

This denial is not only injurious to appellant, and to 
other Negro citizens of the State, but adverse to the in­
terests of all the citizens of the State by denying to them 
the full resources of more than 924,391 Negro citizens.

D. The Requirements of the 14th Amendment 
Can Be Met Only Under an Unsegregated 
Public Educational System.

The above recited data show that equal educational 
facilities are not maintained in those states, including 
Texas, where segregation is required. More than that it 
is impossible for equal facilities to be maintained under 
a segregated system. The theory that segregation is con­
stitutional as long as the facilities provided for Negroes 
are equal to those provided for whites is a proper inter­
pretation of the federal constitution only if the rationale 
on which the rule is based is correct. In those areas 
where segregation is enforced in education, the states 
concerned are least able economically to afford the estab­
lishment of equal facilities in all respects that are re­
quired if this theory is to be complied with. The facts 
demonstrate that they could not provide such equal facili­
ties even if they were so disposed to do so. It is clear, 
therefore, that the rationale for this “ equal but separate 
rule” of law is fallacious. A Fortiori, the theory is er­
roneous and should be discarded in light of the actualities 
of the situation.



40

Segregation constitutes a denial of the equal protec­
tion of the laws and is violative of the Constitution and 
the laws of the United States. Despite the line of cases 
in support of the “ separate but equal” theory, this Court 
is under an obligation to re-examine the rule and the 
reasons on which it is based in the light of present day 
circumstances and to adopt and apply a rule which con­
forms with the requirements of our fundamental law.

E. Even Under “Equal But Separate” Doc­
trine,the Action of Appellees Violates the 
Fourteenth Amendment.

Appellant, with all the requisite scholastic and moral 
qualifications therefor, applied for admission to the Uni­
versity of Texas Law School, the only law school main­
tained by the state for the education of its citizens. Ap­
pellees refused him admission because of race and color. 
In defense of this action appellees alleged, but failed 
to prove, that a law school equivalent to that of the Uni­
versity of Texas is now available for appellant. In the 
absence of any proof of this fact, it must be assumed 
by this court that no provision for the legal education 
of Negro has been made or is being made in the State 
of Texas. If the State of Texas is to fulfill its obliga­
tions to appellant under the Fourteenth Amendment 
and under its own Constitution, it is clear that appellant 
must be admitted to the University of Texas without 
further delay.



41

This is true under either theory discussed above. Un 
der the theory of appellant that segregation in Texas’ 
educational system violates the federal constitution, the 
maintenance of a school of law for the exclusive atten­
dance of white persons is unconstitutional. Appellant 
and other Negro applicants must be admitted to such 
school if they are to enjoy the rights and benefits guar­
anteed under the Fourteenth Amendment. Under the 
theory of appellees that segregation does not violate our 
fundamental law, as long as the facilities set aside for 
Negroes are equal to those set aside for whites, it is 
clear that the State cannot set up a law school exclusive­
ly for whites without at the same time making similar 
provisions for Negroes.18 In absence of proof that this 
in fact has been accomplished in Texas, appellees have 
failed in their effort to defend their position. Their 
refusal, therefore, to admit appellant to the law school 
of the University of Texas because of race and color 
remains an undefended, direct and illegal violation of 
appellant’s right under the Fourteenth Amendment and 
under any recognized theory of American constitutional 
law.

ls. Pearson v. Murray, 169 Md. 478, 182 A. 590 (1936); Missouri 
ex rel. Gaines v. Canada, 305 U. S. 337 (1938); see also other cases 
cited in note 5, supra.



42

CONCLUSION

It is clear from the record in this case that the legisla­
ture and the state officers charged with the duty of 
administering state institutions of higher education in 
Texas have refused to follow the Constitution of the 
United States and have denied to appellant basic con­
stitutional rights. Today we are just emerging from 
a war in which all of the people of the United States 
were joined in a death struggle against the apostles of 
racism. We have already recognized by solemn sub­
scription to the Charter of the United Nations, particu­
larly Articles One and Fifty Five thereof, our duty, 
along with our neighbors, to eschew racism in our 
national life and to promote “universal respect for, and 
observance of, human rights and fundamental freedoms 
for all without distinction as to race, sex, language, or 
religion.”  Public education is one of the bulwarks of 
our democracy and must be offered to all citizens of 
Texas “ without distinction as to race, sex language or 
religion.”

WHEREFORE, it is respectfully submitted that the 
judgment of the Court below is in error and should be 
reversed, and he prays that the judgment of the Court 
below be reversed and judgment here rendered for the 
appellant instructing the trial judge to issue the writ



43

of mandamus and he prays for such other relief as the 
facts and the law demands.

W. J. Durham of Dallas 
T hurgood Marshall of New York
Attorneys for Appellant.

By:..........................

J. M. Nabrit 
C. B. Bunkley, Jr.
Kenneth Lampkin  
H. M. Bellinger 
Robert L. Carter 

OF COUNSEL:

The rule has been complied with and 
a copy of this brief has been delivered 
to the Honorable Price Daniels, At­
torney General of the State of Texas

By:









IN  T H E

Supreme Court of the United States
October Term, 1948

No.

HEMAN MARION SWEATT,

vs.
Petitioner,

THEOPHILIS SHICKEL PAINTER, ET AL. 
...... ...............................  |..............

PETITION AND BRIEF IN SUPPORT OF PETITION FOR 
WRIT OF CERTIORARI TO THE SUPREME COURT OF 

THE STATE OF TEXAS

W . J. D urham,
W illiam H. H astie,
W illiam R. Ming, J r., 
James M. Nabrit, J r., 
T hurgood Marshall,

Attorneys for Petitioner.
R obert L. Carter,
E. B. B unkley, J r.,
Harry Bellinger,
U. S. Tate,

Of Counsel.





TABLE OF CONTENTS

PAGE

Petition foe Weit of Ceetioeaei

Past One—Summary Statement of the Matter In­
volved _________________________________    2
I. Statement of the Case _____________________  2

First Hearing ____________________ _______  3
Second Hearing_________________________  3
Hearing on the Merits __ ...______________  3

II. Summary of Testimony _________.___________  5
A. The Two Law Schools ______________ ____ 6

Physical Plant i ______________________  7
Library ________________ ______________ 7
Faculty ________________________   7
Student Body ___________    7

B. The Unreasonableness of C o m p u l s o r y
Racial Segregation in Public Legal Edu­
cation __________________________________ 9

C. Inequalities Inherent in Segregated School
Facilities ______________________________   11

Past Two—Opinion of the Court Below___________   12
Past Theee—Jurisdiction _____________________ 1  13
Part Fottb—Question Presented ________________   13
Part Five—Reasons Relied Upon for Allowance of 

the Writ ___________________________   13
Conclusion ______________________________________  14



11

PAGE

Brief in Support T hereof

Opinion of the Court Below _____________________  15

Jurisdiction _____________________________________  15

Statement of the Case__________ ________________  16

Errors Relied U pon_____________________________  16

A rgument

I. The question whether a state which undertakes 
to provide legal education for any of its citi­
zens can satisfy the requirements of the equal 
protection clause of the Fourteenth Amend­
ment by establishing a law school for Negroes 
separate from the law school it provides for all 
other persons is of great public importance and 
should be decided by this Court iii this case 17

II. The inconsistency between the judicial approval 
of laws imposing racial distinctions in Plessy 
v. Ferguson and the judicial disapproval of 
similar distinctions and classifications in more 
recent decisions should lead this Court to re­
view and disavow the doctrine of Plessy v. 
Ferguson__________________________ _________  23

TIT. This Court should review and reverse the judg­
ment below to prevent the several states from 
being free to restrict Negroes to public edu­
cational facilities clearly inferior to those pro­
vided for all other persons similarly situated 
through the device of arbitrary judicial deci­
sion that such discriminatory action provides
“ substantial equality”  ______________ _________ ______  28

Conclusion ________________________________ _______  33



I l l

Table of Cases
PAGE

Atchison Topeka & Santa Fe E. E. Co. v. Vosburg, 238 
U. S. 5 6 _____ ________________________________  27

Berea College v. Kentucky, 211 U. S. 45______________  26
Bluford v. Canada, 32 F. Supp. 707__________________  29
Bob-Lo Excursion Co. v. Michigan, 333 U. S. 28_______ 26
Buchanan v. Warley, 245 U. S. 60____________________ 25

Colgate v. Harvey, 296 U. S. 404_____________________14,27
Connolly v. Union Sewer Pipe Co., 184 U. S. 540______ 27
Cory v. Carter, 48 Ind. 337______ ____________________ 24
Cotting v. Kansas City Stock Yards Co., 183 U. S. 79__ 27
Cummings v. County Board of Education, 175 U. S.

528 _________________________ -_________________23,24

Dawson v. Lee, 83 Ky. 49___________________________  24

Ex Parte Virginia, 100 U. S. 339_____________________  26

Fisher v. Hurst, 333 U. S. 147_______..._____________ 25, 30

Gong Lum v. Eice, 275 U. S. 78___....____________ 23, 24, 25
Gulf Colorado & Sante Fe E. Co. v. Ellis, 165 U. S. 150_ 27

Hall v. DeCuir, 95 U. S. 485___ _______ ...____________ 23, 26
Hartford Steam Boiler Insurance and Inspection Co. v. 

Harrison, 301 U. S. 459______________________  27
Hill v. Texas, 316 U. S. 400.______________________ 25

Johnson v. Board of Trustees (File No. 625, U. S. Dist. 
Court for the Eastern District of Kentucky)______ 30



IV
PAGE

Lehew v. Brummell, 103 Mo. 546___________________ _ 24
Louisiana ex rel. Hatfield v. Louisiana State University 

(File 25,550, State Court for the 19th Judicial Dis­
trict) __________________________________________  30

Louisville Gas & Electric Company v. Cohen, 277 U. S.
32__________________________    27

Mayflower Farms v. Ten Eyck, 297 U. S. 266__________ 27
McCabe v. Atchison Topeka & Santa Fe E. Co., 235 

U. S. 151 _________________________________ i,— 23, 26
McLaurin v. Oklahoma State Regents, et al., No. 614, 

October Term, 1948 ____________________________  30
Missouri ex rel. Gaines v. Canada, 305 U. S. 337___23, 25, 29
Mitchell v. United States, 313 U. S. 80________________  26
Morgan v. Virginia, 328 U. S. 373--------   26

Oyama v. California, 332 U. S. 633__________________ 14, 25

Pearson v. Murray, 169 Md. 478 ____________________  30
People v. Gallagher, 93 N. Y . 438____________________  24
Plessy v. Ferguson, 163 U. S. 537______ 14, 23, 24, 25, 28, 29
Powers Mfg. Co. v. Saunders, 274 U. S. 490 __________ 27

Quaker City Cab Co. v. Pennsylvania, 277 U. S. 389 ___ 27

Eoyster Guano Co. v. Virginia, 253 U. S. 412 . _______ 27
Roberts v. Boston, 5 Cush. (Mass.) 198_______________  24

Shelley v. Kraemer, 334 U. S. 1 ------------------------------- 14, 25
Sipuel v. Board of Regents, 332 U. S. 631---------2, 23, 25, 30
Skinner v. Oklahoma, 316 U. S. 535 __________________  27
Smith v. Cahoon, 283 U. S. 553 ____________________ -—  27



V

Southern Ey. Co. v. Greene, 216 U. S. 400____________  27
State, ex rel. Michael v. Whitham, 179 Tenn. 250______ 29
State, Games v. McCann, 21 Ohio St. 210____________  24
Strauder v. West Virginia, 100 U. S. 303______________  25

Takahashi v. Fish & Game Commission, 332 IT. S.
410----------------------------------------------------------------- 14, 25

Truax v. Corrigan, 257 U. S. 312____________________  27

Truax v. Eaich, 239 U. S. 3 3 ___________________ ____ 26

Virginia v. Eieves, 100 U. S. 313_____________________  26

Ward v. Flood, 48 Cal. 36___________________________  24
Wrighten v. Board of Trustees, 72 F. Supp. 948_____24, 29
Yiek Wo v. Hopkins, 118 U. S. 356 __________________  25

PAGE

Other Authorities

Argument of Charles Sumner, Esq., Against the Consti­
tutionality of Colored Schools in the case of Sarah C. 
Roberts v. Boston, 1849__________________________  20

Ballantine, The Place in Legal Education of Evening 
and Correspondence Law Schools, 4 Am. Law School 
Eev. 369 (1918) _________________________________ 21

Boyer, Smaller Law Schools, Factors Affecting Their 
Methods and Objectives, 20 Oregon Law Eev. 281
(1941) ------------------------------------------------------- ------  21

“ Higher Education for American Democracy,”  A Re­
port of the President’s Commission on Higher Edu-

* cation, U. S. Government Printing Office, Washing­
ton, December, 1947 _____________________________ 19

Holmes, “ The Use of Law Schools”  in Collected Legal 
Papers (1920)___________________________________ 21



PAGE

Journal of Negro Education (1945), Vol. XIV, Fall 
Number ____ ___________________________________

McCormick, The Place and Future of the State Univer­
sity Law School, 24 N. C. L. Rev. 441____________ 21,

Otto Klineberg, Negro Intelligence and Selective Migra­
tion (N. Y., 1935) _______________________________

Peterson & L. H. Lanier, “ Studies on the Comparative 
Abilities of Whites and Negroes,”  Mental Measure­
ment Monograph, 1929 __ ________________________

Report of Board of Officers on Utilization of Negro 
Manpower in the Post-War Army (February, 1946)

Simpson, “ The Function of a University Law School,”  
49 Harv. L. Rev. 1068 ___________________ ______ 20,

Sixteenth Census of the United States, Vol. I ll, Part 
IV (1940) ______________________________________

Stone, ‘ ‘ The Public Influence of the Bar, ’ ’ 48 Harv. L. 
Rev. 1 :_________________________________________

The Black and White of Rejections for Military Service, 
Montgomery, Ala., American Teachers Association, 
1944 __________________________________________ 18,

“ To Secure These Rights,”  The Report of the Presi­
dent’s Committee on Civil Plights, U. S. Government 
Printing Office, 1947 ___________________- ________

Townes, Organization and Operation of a Law School, 2 
Am. Law School Rev. 436 (1910)_________________

19

22

22

22

18

22

20

22

22

18

21



IN THE

Supreme Court of the United States
October Term, 1948

No.

H uman Marion Sweatt,
Petitioner,

vs.

T heophilis Shickel P ainter, et al.

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF THE STATE OF TEXAS

To the Honorable, the Chief Justice of the United States 
and the Associate Justices of the Supreme Court of the 
United States:

Petitioner respectfully prays that a writ of certiorari 
issue to review the judgment of the Supreme Court of Texas 
denying his application for writ of error to review the 
judgment of the Court of Civil Appeals which had affirmed 
the judgment of the District Court of Travis County dis­
missing petition for writ of mandamus to compel respon­
dents to admit petitioner to the University of Texas School 
of Law.



2

P A R T  O N E

SUMMARY STATEMENT OF THE MATTER 
INVOLVED

I
Statement of the Case

This case is believed to present for the first time in this 
Court a record in which the issue of the validity of a state 
constitutional or statutory provision requiring the separa­
tion of the races in professional schools is clearly raised.1 
It is the first record which contains expert testimony and 
other convincing evidence showing the lack of any reason­
able basis for racial segregation at the professional school 
level, its inherent inequality and its effect on the students, 
the school and the state.

Over a period of two years three hearings were held in 
the trial court. The first presented a situation in which the 
state excluded Negroes entirely from its state-supported 
law school facilities. The second came after the state had 
proposed to undertake the establishment of a Negro law 
school, and the third hearing took place subsequent to a 
specific tender of segregated legal training of sorts by the 
state. Throughout the three hearings, petitioner challenged 
the validity of the constitutional and statutory provisions 
of the state requiring racial segregation of students and the 
resulting exclusion of petitioner from the law school of the 
"University of Texas because of his race as contravening 
the Fourteenth Amendment.

1 There are two other cases involving a similar question. Mc- 
La.urin v. Oklahoma State Regents, et al., No. 614, October Term, 
1948 is now pending before this Court on direct appeal. Sipuel v. 
Board o f Regents, et al., 332 U. S. 631 was retried in the local court, 
and a record made including testimony of experts in the fields of legal 
training, anthropology and sociology. That case is now pending on 
appeal before the Supreme Court of Oklahoma.



3

First H earing

On May 16, 1946 petitioner filed in the 126th District 
Court of Travis County, Texas, a petition for a writ of 
mandamus alleging that he had been refused admission to 
the law school of the University of Texas solely because of 
race and color (R. 403-408). On June 17, 1946 a hearing 
was held, and on June 26th the district court entered an 
order finding that the refusal to admit petitioner was a 
denial of the equal protection of the laws for the reason 
that no provision had been made for legal training for him. 
The court, however, refused to grant the writ at that time 
and gave the respondents six months to provide a course 
of legal instruction substantially equivalent to that afforded 
at the University of Texas setting the next hearing date for 
December 17th (R. 424-426).

Second H earing

At the December 17th hearing it appeared that the state 
had done no more than authorize the instruction of Negroes 
at a non-existent law school to be established at Houston 
(R. 426-432). Yet, the district court entered a final order 
dismissing the petition for a writ of mandamus on the 
ground that “ the said order of June 26, 1946 has been com­
plied with in that a law school or legal training substantially 
equivalent to that offered at the University of Texas has 
now been made available to the Relator”  (R. 433).

This judgment was appealed to the Court of Civil Ap­
peals, and on March 26,1947 the judgment of the trial court 
was set aside without opinion and the cause remanded gener­
ally for further proceedings without prejudice (R. 434-435).

H earing on  the M erits

On May 1, 1947 respondents filed their first amended 
original answer alleging that “ The Constitution and laws



4

of the State of Texas require equal protection of the law 
and equal educational opportunities for all qualified persons 
but provide for separate educational institutions for white 
and Negro students”  (R. 415). It was further alleged that 
the refusal to admit petitioner was therefore not arbitrary 
or in violation of the Constitution of the United States since 
“ equal opportunities were provided for relator in another 
state-supported law school”  (R. 415).

On May 8, 1947 relator filed his second supplemental 
petition pointing out that the proposed law school for 
Negroes did not meet the requirements of the equal protec­
tion clause and that the continued refusal to admit peti­
tioner to the law school of the University of Texas was in 
violation of the Fourteenth Amendment and that “ insofar 
as respondents claim to be acting under authority of the 
Constitution and laws of the State of Texas their continued 
refusal to admit the relator ‘to the law school of the Uni­
versity of Texas is nevertheless in direct violation of the 
Fourteenth Amendment to the Constitution of the United 
States”  (R. 412). It was also alleged that “ such consti­
tutional and statutory provisions of the State of Texas as 
applied to Relator are in direct violation of the Fourteenth 
Amendment to the Constitution of the United States”  (R. 
413).2

Thereafter, respondents filed their first supplemental 
answer reaffirming their reliance upon the validity of the 
provisions of the Constitution and laws of Texas requiring 
racial segregation in public education (R. 420).

From May 12 to May 18, 1947, hearing was had and tes­
timony was taken before the district court, sitting without

2 At the trial of this case, the responsible officials of the University 
of Texas made it clear that they refused admission to the petitioner 
because of the Constitution and laws of Texas requiring segregation 
of the races in public education (R . 40-41, 56, 161).



5

a jury, and on June 17, 1947 judgment was entered for 
respondents. The judgment concluded that “ the constitu­
tional right of the State to provide equal educational op­
portunities in separate schools being well established and 
long recognized by the highest state and federal courts, and 
the facts in this case showing that Eelator would be offered 
equal if not better opportunities for the study of law in such 
separate school, the petition for Writ of Mandamus should 
be denied”  (R. 440). (Italics ours.)

The Court of Civil Appeals affirmed the judgment of the 
lower court on February 25, 1948 (R. 445-460). Motion for 
rehearing was filed on March 11, 1948 (R. 461-464) and was 
denied on March 11, 1948 (R. 465), with opinion appearing 
in the record at pages 460-461.

On September 29, 1948 application for writ of error to 
the Supreme Court of Texas was denied without opinion, 
and on October 27,1948 motion for rehearing was overruled 
(R. 471).

On January 12, 1949 this Court issued an order extend­
ing time to file this petition for writ of certiorari up to and 
including March 23, 1949 (R. 472).

II

Summary of Testimony

The testimony offered by the respondents was limited 
to the question of the alleged physical equality between 
the law school at the University of Texas and the law school 
for Negroes. The respondents produced no evidence to 
justify the state’s constitutional and statutory provisions 
requiring the segregation of the races in public law schools. 
On the other hand, petitioner offered the uncontradicted 
testimony of expert witnesses showing: (1) that there is



6

no rational basis for compulsory racial segregation in public 
education; (2) that there are no recognizable racial differ­
ences as to capacities between students of different races; 
and (3) that compulsory racial segregation in public edu­
cation is harmful to the students of all groups and the 
community. Petitioner also produced expert testimony 
showing that it is impossible for a law school student to get 
an education in a school limited to one racial group equal 
to that obtained in a law school to which all other groups 
are freely admitted. Expert testimony offered by the peti­
tioner also showed the inevitable inequalities inherent in a 
public school system maintained on a basis of racial segre­
gation.

A

T h e T w o  Law Schools

Although Negroes have always been excluded from the 
University of Texas because of their race or color, the State 
of Texas has never offered them “ separate but equal”  
facilities (R, 56). As Dean Pettinger, a witness for respon­
dents who has studied educational facilities for Negro and 
white students in Texas for thirty years, stated: “ I am un­
able to think for the moment of colored institutions and 
white institutions which do have equal facilities with which 
I have been associated”  (R. 33).

When petitioner applied for a legal education the only 
law school in existence maintained by the State of Texas 
was the one at the University of Texas (R. 425).

The University of Texas has been in existence since 
the last century. The law school has been in existence for 
more than fifty years and is recognized and accredited by 
every association in the field (R. 90-91). The Negro school 
had just been opened in March, 1947 and was not ac­
credited by any agency (R. 96, 25).



7

Physical Plant

The proposed Negro law school was to be set up in the 
basement8 of a building in downtown Austin consisting of 
three rooms of moderate size, one small room and toilet 
facilities (R. 36). There were no private offices for either 
the members of the faculty or the dean. The space for this 
law school had been leased for a period from March to 
August 31, 1947 at $125 a month, and the authorities were 
negotiating for a new lease after that period (R. 41). It 
was freely admitted that “ there is no fair comparison in 
monetary value”  between the two schools (R . 43). There 
was no assurance as to where the proposed law school 
would be located after August 31st, and it was not even 
certain as to what city it would be in after August 31st 
(R . 52-53).

Library

While the law school at the University of Texas had a 
well-rounded library of some 65,000 volumes (R . 133), the 
proposed Negro school had only a few books, mostly case 
books for use of first-year students (R . 21-22). However, 
the students at the proposed law school for Negroes had 
access only to the law library in the state capitol directly 
across the street, a right in common with all other citizens 
of the State of Texas (R . 45). A  library of approximately 
10,000 volumes had been requisitioned on February 25, 1947 
(R. 40) but was not available for use at the time of the 
opening of the Negro school on March 10 nor at the time 
of the trial of this case (R . 44). The University of Texas 
law school had a full-time, qualified and recognized law 
librarian with two assistants (R . 139). The Negro law 3

3 Pictures of the building of the Law School at the University of 
texas and the basement quarters o f the so-called Negro law school 
appear in the record at pages 385-387 and 389.



8

school had neither librarian nor assistant librarians (R. 
74, 80, 128).

It was admitted that the library at the state capitol, a 
typical court library and not a teaching library, was not 
equal to the one at the University of Texas, and did not 
meet the standards of the Association of American Law 
Schools (R. 134, 138, 145). It was also admitted that even 
if the requisitioned books were actually obtained the library 
would not then be equal to the library already in existence 
at the law school of the University of Texas (R. 151).

F aculty

The University of Texas Law School has a faculty con­
sisting of sixteen full-time and three part-time professors 
(R. 369-371). The proposed faculty for the Negro school 
was to consist of three professors from the University of 
Texas who were to teach classes at the Negro school in 
addition to their regular schedule at the University of 
Texas (R. 59, 84, 87).4 The comparative difference in value 
between full-time and part-time law school professors was 
freely acknowledged and it was admitted that the proposed 
“ faculty”  did not meet the standards of the Association 
of American Law Schools (R. 59, 91-92).

S tudent B od y

There were approximately eight hundred fifty students 
at the lawT school of the University of Texas (R. 76). From 
the record it appears that all qualified students other than 
Negroes were admitted. There were no students at the 
proposed Negro school at the date of opening nor at the 
time of the trial (R. 162). Although several Negroes had 
made inquiry concerning the school, none had applied for

4 It was also shown that offices for the dean and faculty members 
involved were to remain at the University o f Texas (R . 46-47).



9

admission (E. 162). If petitioner had entered this school 
he would have been the only student.

The law school of the University of Texas had a moot 
court, legal aid clinic, law review, a chapter of Order of the 
Coif, and a scholarship fund (E. 102-105). None of these 
were present or possible in the proposed Negro law school, 
and Charles T. McCormick, dean of the two law schools, 
testified that he did not consider these to be factors ma­
terial to a legal education but rather, that they were “ ex­
traneous matters”  (E. 106).

B
T he U nreasonableness o f  C om pulsory R acial 

Segregation  in Public Legal Education

Dr. Eobert Eedfield, Chairman of the Department of 
Anthropology at the University of Chicago, testified, as an 
expert, that there is no recognizable difference as to ca­
pacities between students of different races and that scien­
tific studies had concluded that differences in intellectual 
capacity or ability to learn have not been shown to exist 
between Negroes and other students. He testified that as a 
result of his training and study in his specialized field for 
some twenty years, it was his opinion that given a similar 
learning situation with a similar degree of preparation, one 
student would do as well as the other, on the average, with­
out regard to race or color (E. 192-194).

Dr. Eedfield testified further that the main purpose of 
education is to develop in every citizen, in accordance with 
the natural capacities of such citizen, the fullest intellectual 
and moral qualities and the most effective participation in 
the duties of citizenship (E. 192).

Dean Earl G. Harrison of the University of Pennsyl­
vania Law School, testifying as an expert in the field of



10

legal education, summed up the purposes of legal education 
as follows: “ The studies that I have reference to have 
pointed out in general that there are four objectives of law 
school education. One is, of course, to prepare the prac­
titioner. Second, is to prepare and train law teachers. 
Third, is to train and prepare men for legal research, and 
the fourth objective is to train and prepare men and women 
for public service”  (E. 220).

Professor Malcolm Sharp of the law faculty of the Uni­
versity of Chicago testified as an expert in the field of legal 
education and explained in detail the purposes of legal 
training for public service giving examples of the benefits 
to society of Negro lawyers trained for public service in 
non-segregated law schools (E. 344-346).*

The experts on legal education also testified as to the 
patent inequality between the two law schools and the im­
possibility of equality between the schools. They agreed 
that it was absurd to speak of any institution that has one 
student as a law school (E. 216-217, 349-350). They stressed 
the need for competition among students of all classes as 
an absolute necessity for a legal education (E. 218, 344, 
347). They testified that moot court, Order of the Coif, 
scholarship fund, law reviews and legal aid clinics were 
most important for a well-rounded legal education and that 
they were “ not by any means extraneous”  (E. 221, 347). 5

5 “ Q. Now, as a result o f your studies and your teaching ex­
perience, along with your experience in the Association of American 
Law Schools, would you state briefly the recognized purposes o f a 
law school as of today?

“ A. The purpose of a law school is, o f course, first; to train for 
practice of the profession in the familiar way. The second purpose 
has been becoming more and more important, as all o f the leading 
schools have recognized, training for positions of public service, as 
lawyers are called on to fill, to a marked extent, administrative 
agencies, the bench, legislative positions. The schools are paying 
more and more attention to training for that purpose. O f course, 
the training of teachers and scholars in the field.”



11

These expert witnesses also testified that a sizeable body 
of students of all races, classes and walks of life was of 
major importance to an adequate legal education. They 
denied that one Negro or a few Negroes at a segregated law 
school could under any circumstances obtain a legal educa­
tion equal to that obtained at the University of Texas (R. 
227, 343, 344, 347, 350, 351, 352).

Each of the expert witnesses offered by the petitioner 
testified that compulsory racial segregation in public educa­
tion not only made it impossible for the Negro to get an 
education equal to that offered to the students in the other 
school but was harmful to the segregated Negro students, 
the students in the other schools, and the community in gen­
eral (R. 194-196, 198-199, 227, 341).

c
Inequalities Inherent in Segregated School Facilities

The petitioner offered in evidence several reports of 
governmental agencies, federal and state, showing without 
exception the inequalities in educational facilities in segre­
gated schools throughout the states where segregated 
schools are required (R. 248). The petitioner also offered 
the testimony of Dr. Charles Thompson, documented by 
recognized governmental reports, showing conclusively 
that wherever separate schools were maintained under 
state law for Negro students, these schools were without 
exception inferior to the schools maintained for students 
of other racial groups. The comparison was broken down 
into each category recognized bv educators as valid for 
comparison purposes (R. 228-283).® An appendix showing

® Dr. Thompson’s testimony was admitted into the record but by 
final order of the District Judge was ordered stricken from the record 
as being beyond the scope of the pleadings and issues and immaterial 
and irrelevant (R . 441).



12

in detail the inequalities in segregated school systems is 
filed herewith as “ Petitioner’s Appendix” .

Petitioner also offered the testimony of Donald G. 
Murray who had been admitted to the law school of the 
University of Maryland as a result of legal action and who 
was the first Negro to he admitted to a law school in a 
state where segregation is required in public schools. Ob­
jection to this testimony was sustained but the testimony 
was placed in the record on a bill of exceptions (R. 288). 
This testimony showed that although dire consequences 
were predicted by state officials of Maryland if Murray was 
admitted to the law school, it developed that his admission 
brought about no untoward results (R. 288-291).

P A R T  T W O

O P IN IO N  O F  T H E  C O U R T  B E L O W

The Court of Civil Appeals in affirming the judgment 
of the lower court based its decision on existence of and the 
validity of the state’s policy of segregation and found that 
“ the State at the time of the trial had provided and made 
available to Relator a course of instruction in law as a first 
year student, the equivalent or substantial equivalent in its 
advantages to him of that which the State was then pro­
viding in the University of Texas Law School. We are not 
dealing here with abstractions but with realities”  (R. 449). 
The judgment of the Supreme Court of Texas refusing 
application for writ of error (R. 446) and order overruling 
motion for rehearing were made without an opinion (R. 47). 
The opinions of the trial court are discussed in Part One.



13

P A R T  T H R E E  

JURISDICTION

Jurisdiction of this Court is invoked under Title 28, 
United States Code, section 1257 this being a case involving 
rights secured under the Fourteenth Amendment. Peti­
tioner’s cause is founded upon rights secured by the Consti­
tution of the United States.

P A R T  F O U R  

QUESTION PRESENTED

May the State of Texas Consistently With the Requirements 
of the Fourteenth Amendment Refuse to Admit Petitioner 
Because of Race and Color to the University of Texas

School of Law?

P A R T  F I V E

REASONS RELIED UPON FOR ALLOWANCE 
OF THE WRIT

I
The courts of Texas, and of many states, while pretend­

ing to observe the requirements of equal protection of the 
laws in educational matters, approve the exclusion of 
Negroes from adequate public law schools, thus denying to 
large numbers that equality of educational opportunity 
which is the very foundation of democracy. The courts’ 
theory presupposes that the equality guaranteed by the 
Fourteenth Amendment can be realized in a pattern of com­
pulsory racial segregation in public education. The extent 
of this practice and the severity of its impact on the com­
munity are such as to warrant consideration by this Court.



14

II
The court below relied on Plessy v. Ferguson. The in­

consistency between the judicial approval of laws imposing 
racial distinctions in Plessy v. Ferguson and the judicial 
disapproval of similar distinctions and classifications in 
more recent decisions including Oyama v. California, 
Shelley v. Kraemer, Takahashi v. Fish & Game Commission 
should lead this Court to review the correctness of the doc­
trine of Plessy v. Ferguson and overrule it.7

III
This Court should review and reverse the judgment be­

low to prevent the several states from being free to restrict 
Negroes to public educational facilities clearly inferior to 
those provided for all other persons similarly situated 
through the device of arbitrary judicial decision that such 
discriminatory action provides “ substantial equality” .

CONCLUSION
W herefore, it is respectfully submitted that this petition 

for  writ o f certiorari to review the judgment of the court 
below, should be granted.

W. J. D urham,
W illiam H. Hastie, 
W illiam R. Ming, Jr.,
J ames M. Nabrit, J r., 
T hurgood Marshall,

R obert L. Carter, Attorneys for Petitioner.
E. B. B unkley, Jr.,
Harry B ellinger,
U. S. Tate,

Of Counsel.

7 Plessy v. Ferguson, 163 U. S. 537; Oyama v. California, 332 
U. S. 633 ; Shelley v. Kraemer, 334 U. S. 1; Takahashi v. Fish and 
Game Commission, 332 U. S. 410. As to this Court’s disapproval 
of unreasonable classifications generally, see, for example, Colgate v. 
Harvey, 296 U. S. 404.



1ST THE

Supreme Court of the United States
October Term, 1948

No.

H eman Marion Sweatt,
Petitioner,

vs.

T heophilis Shickel, P ainter, et al.

BRIEF IN SUPPORT OF PETITION FOR W RIT OF 
CERTIORARI TO THE SUPREME COURT 

OF TEXAS

Opinion of the Court Below

The opinion of the Court of Civil Appeals can be found 
at page 445 of this record, and that of the District Court of 
Travis County is reported at page 438.

Jurisdiction

Jurisdiction of this Court rests upon Title 28, United 
States Code, Section 1257. The District Court of Travis 
County entered judgment for respondents on June 17, 1947.

15



16

Judgment was affirmed by Court of Civil Appeals, Febru­
ary 25, 1948. Application for writ of error was refused by 
Supreme Court of Texas on September 29, 1948 (R. 466). 
Motion for rehearing was overruled on October 27, 1948 
(R. 471). On January 12,1948 this Court extended the time 
for filing this petition for writ of certiorari until March 23, 
1949 (R. 472).

Statement of the Case

Pertinent facts involved in this case are set out in the 
petition itself, and therefore, are not restated here.

Errors Relied Upon

The Court erred in refusing to consider evidence show­
ing discriminatory features inherent in enforced racial 
separation at the professional school level.

The Court erred in predicating its decision upon Plessy 
v. Ferguson and in disregarding principles serving the basis 
for more recent decisions of this Court in conflict with the 
rationale of that case.

The Court erred in refusing to hold that the racial classi­
fication here complained of was arbitrary and unreasonable 
within the meaning of the Fourteenth Amendment.

The Court erred in finding that the law school for 
Negroes at Austin was the “equivalent or substantial equi­
valent of the law school of University of Texas” .

The Court erred in finding that the constitutional and 
statutory provisions of the State of Texas requiring segre­
gation in public education were consistent with the require­
ments of the Fourteenth Amendment.



17

A R G U M E N T

I

The question whether a state which undertakes to 
provide legal education for any of its citizens can sat­
isfy the requirements of the equal protection clause of 
the Fourteenth Amendment by establishing a law 
school for Negroes separate from the law school it pro­
vides for all other persons is of great public impor­
tance and should be decided by this Court in this case.

The education of the youth of our nation, formerly the 
responsibility of the parent, has now become a recognized 
function of government. This has become a matter of 
national importance. The individual states have provided 
public education through the graduate and professional 
school levels. Most of the states provide educational facili­
ties without regard to the race or creed of the student. 
However, seventeen of the states have insisted upon either 
the complete exclusion or the segregation of Negroes in 
public education.1 The record of these states has brought 
down the national level of education. The question of the 
legality of such racial segregation, which amounts to actual 
exclusion from the regular recognized state university, is of 
great public importance.

The seventeen southern states where a pattern of edu­
cational segregation is sanctioned and enforced by state law 
comprise the area of our country which is least able to 
afford either the financial or the educational hazards created 
ty a dual system of education. The burden on the treasury 
m maintaining a dual system of education cannot help but

1 Alabama, Arkansas, Delaware, Florida, Georgia, Kentucky, 
Louisiana, Maryland, Mississippi, Missouri, North Carolina, Okla­
homa, South Carolina, Tennessee, Texas, Virginia, West Virginia.



18

be reflected in a deprivation of educational opportunities 
and facilities for all groups.

The impact of this policy of segregation is felt not only 
by the minority group, but the nation as a whole. In the 
most critical period of June-July, 1943, when the nation 
was crying for manpower, 34.5% of the rejections of 
Negroes from the armed forces were for educational de­
ficiency. Only 8% of the white selectees rejected for mili­
tary service failed to meet the educational standards.2

The official War Department report on the utilization of 
Negro manpower in the postwar Army says that “ in the 
placement of men who were accepted, the Army encountered 
considerable difficulty. Leadership qualities had not been 
developed among the Negroes, due principally to environ­
ment and lack of opportunity. These factors had also af­
fected development in the various skills and crafts.” 3

Recognizing that segregation constitutes a menace to 
American freedom and was indefensible, the President’s 
Committee on Civil Rights unequivocally recommended it's 
elimination from American life.4 In the same year, the

3 The Black and White o f Rejections for Military Service, Mont­
gomery, Ala., American Teachers Association, 1944, p. 5.

8 Report o f Board o f Officers on Utilization o f Negro Manpower 
in the Post-War Army (February, 1946), p. 2.

4 “ To Secure These Rights” , The Report o f the President’s Com­
mittee on Civil Rights, U. S. Government Printing Office, 1947, p. 
166 “ The separate but equal doctrine has failed in three important 
respects. First, it is inconsistent with the fundamental equalitari- 
anism o f the American way o f life in that it marks groups with the 
brand o f inferior status. Secondly, where it has been followed, the 
results have been separate and unequal facilities for minority peoples. 
Finally, it has kept people apart despite incontrovertible evidence that 
an environment favorable to civil rights is fostered whenever groups 
are permitted to live and work together. There is no adequate de­
fense of segregation.” Ibid.



19

President’s Commission on Higher Education, in its report 
on education in the United States said:5

“ The time has come to make public education at 
all levels equally accessible to all, without regard to 
race, creed, sex or national origin.”

This, too, is the almost unanimous conclusion of scholars 
and students who have studied the problem.

The professional skills developed through graduate 
training are among the most important elements of our 
society. Their importance is so great as to be almost self- 
evident. Teachers pass on skills and knowledge from one 
generation to another. Engineers create and service the 
technology that has been bringing more and more good to 
more and more people. Doctors and dentists guard the 
health of their people. Lawyers guide their relationships 
in a complicated society.

Racial inequality in education has resulted in a loss to 
the nation of the development of these professional skills in 
a great part of our population. Because of the limited op­
portunities open to Negroes in professional education, in 
the United States in 1940, there was one white physician 
for every 735 white citizens, but only one Negro doctor for 
every 3,651 Negroes.6 And one white lawyer served 670 
whites, but there was only one colored lawyer for every 
12,230 Negro citizens.7 In the petitioner’s native state of 
Texas, the same deprivation of professional services exists. 
In 1940 in Texas, one white lawyer served 709 whites,

5 “ Higher Education for American Democracy” , A  Report o f the 
President’s Commission on Higher Education, U. S. Government 
Printing Office, Washington, December, 1947, p. 38.

6 Journal o f Negro Education (1945), Yol. X IV , Fall number, 
p. 511.

7 Ibid, p. 512.



20

whereas there was only one Negro lawyer for every 40,191 
Negroes.8

Perhaps even more important than the barriers which 
segregation offers to the development of leadership and 
professional skills is its corrosive effect upon the funda­
mentals of a democratic society. Neither white nor Negro 
Americans can maintain complete and full allegiance to the 
basic tenet upon which onr government is founded—“ that 
all men are created equal” —when pupils are being forcibly 
kept apart in the public schools because of their racial iden­
tity.

It is essential for the successful development of our 
country as a nation of free people that the sympathies and 
tolerance which we wish practiced in later life be fostered 
in the classroom. “ And since according to our institutions, 
all classes meet, without distinction, in the performance of 
civil duties, so should they all meet, without distinction of 
color, in the school, beginning there those relations of 
equality which our Constitution and laws promise to all.”  9

Enforced separation in the law school, moreover, is par­
ticularly pernicious because of the vital importance which 
the lawyer maintains in our society. Law is “ a public pro­
fession charged with inescapable social responsibilities.”  10 
The prime purpose of legal training must be not merely, as 
Mr. Justice H olmes has said, “ to make men smart, but to

8 Based on data in Sixteenth Census o f the United States: Popu­
lation, Vol. I l l ,  Part 4, Reports by States (1940).

9 Argument o f Charles Sumner, Esq., Against the Constitution­
ality o f Colored Schools in the case o f Sarah C. Roberts v. Boston, 
1849, pp. 29-30.

10 Simpson, “ The Function o f a University Law School” , 49 
Harv. L. Rev. 1068, 1072.



21

make them wiser in their calling” ,11 and “ to train men for 
public service.” 12

The testimony of the expert witnesses in legal education 
called by the petitioner 13 is amply supported by other ex­
perts. Eminent authorities in the field of legal education 
have demonstrated that there are certain features of a law 
school which are necessary to a proper legal education which 
can only be found in a full-time, accredited law school.14 
Some of these are: a full-time faculty,15 a varied and inclu­
sive curriculum,16 an adequate library, well-equipped build­
ing and several classrooms,17 a well-established, recognized 
law review and a moot court.18

Equally essential to a proper legal education in a demo­
cratic society is the inter-change of ideas and attitudes 
which can only be effected when the student-body is repre­
sentative of all groups and peoples. Exclusion of any one

11 Holmes, “ The Use o f Law Schools” in Collected Legal Papers 
(1920), pp. 39-40.

12 Malcolm Sharp, testimony at p. 341 in Record. See also Mc­
Cormick, “ The Place and Future o f the State University Law School,”  
24 N. C. L. Rev. 441, “ As we rebuild our curricula, it seems that 
niore attention should be given to the knowledge that a lawyer needs 
in order to be a community leader— such matters as planning, zoning, 
and housing come to mind— and to the adaptation o f the public law 
courses not only to the needs of the lawyer serving private clients, 
but to the requirements of graduates who will enter the service o f 
the state and national governments.”

13 The testimony o f these witnesses is summarized in the petition 
at pages 9 to 11.

14 See Boyer, “ Smaller Law Schools: Factors Affecting Their 
Methods and Objectives,”  20 Oregon Law Rev. 281 (1941).

15 Ibid.
18 Ibid.
17 Townes, “ Organization and Operation o f a Law School,”  2 

Am. Law School Rev. 436 (1910) ; Ballantine, “ The Place in Legal 
Education of Evening & Correspondence Law Schools,”  4 Am. Law 
School Review 369 (1918).

18 See Boyer, “ Smaller Law Schools: Factors Affecting Their 
Methods and Objectives,”  20 Oregon Law Rev. 281 (1941).



group on the basis of race, automatically imputes a badge 
of inferiority to the excluded group—an inferiority which 
has no basis in fact.19 The role of the lawyer, moreover, is 
often that of a law-maker, a “ social mechanic” , and a 
“ social inventor.” 20 A  profession which produces future 
legislators and social inventors to whom will fall the social 
responsibilities of our society, can not do so on a segregated 
basis.21

It is evident that even if it were possible to construct a 
law school building for Negroes equal in all respects to the 
one now in existence at the University of Texas with a 
library equal in all respects, with a faculty of equal num­
ber and equal ability (if possible), the separate law school 
could not meet the recognized requirements set out above. 
Actually, in so far as legal education is concerned, an equal 
education is impossible in a jim-crow law school.

Even apart from this, it is absurd to speak of a school 
with only one student as a law school. In the field of legal 
education, even more so than in other fields of public edu­
cation, the blind adherence to the practice of compulsory 
racial segregation not only deprives the individuals in­
volved of the equality of law, but deprives the state and the 
nation of properly trained specialists necessary to our 
government.

19 ‘ ‘The Black and White o f Rejections for Military Service,” 
American Teachers Association, August, 1944, page 29; Otto Kline- 
berg, “ Negro Intelligence and Selective Migration,”  New York, 
1935 ; J. Peterson & L. H. Lanier, “ Studies in the Comparative Abili­
ties o f Whites and Negroes,” Mental Measurement Monograph, 1929.

20 Simpson, “ The Function of a University Law School,”  49 
Harv. L. Rev. 1068, 1072. See also McCormick, “ The Place and 
Future of the State University Law School,”  24 N. C. L. Rev. 441.

21 Simpson, op. cit., p. 1069. See also Stone, “ The Public Influ­
ence o f the Bar,”  48 Harv. L. Rev. 1.



II

The inconsistency between the judicial approval of 
laws imposing racial distinctions in Plessy v. Ferguson 
and the judicial disapproval of similar distinctions and 
classifications in more recent decisions should lead this 
Court to review and disavow the doctrine of Piessy v. 
Ferguson.

In upholding the denial of petitioner’s application for a 
writ of mandamus, the Court of Civil Appeals said: “ The 
validity of state laws which require segregation of races in 
state-supported schools, as being, on the ground of segre­
gation alone, a denial of due process, is not now an open 
question. The ultimate repository of authority to construe 
the Federal Constitution is the Federal Supreme Court. We 
cite chronologically, in a note below, the unbroken line of 
decisions of that tribunal recognizing or upholding the 
validity of such segregation as against such attack.”  In 
support of this proposition, Hall v. DeCuir, 95 U. S. 485; 
Plessy v. Ferguson, 163 U. S. 537; Cummings v. County 
Board of Education, 175 U. S. 528; McCabe v. Atchison, T. 
& 8. F. R. Co., 235 U. S. 151; Gong Lum v. Rice, 275 U. S. 
78; Missouri ex rel. Gaines v. Canada, 305 U. S. 337; Sipuel 
v. Board of Regents, 332 U. S. 631 were cited.

Plessy v. Ferguson raised in this Court for the first time 
the question of the constitutionality of a state statute en­
forcing segregation based upon race and color. In that 
case, a Louisiana statute requiring the separation of Negro 
and white passengers was held to be consistent with the 
equal protection clause of the Fourteenth Amendment. Yet 
the opinion appears to rely heavily upon the leading state 
case in this field—and the only one of the cited cases dis-



24

cussed in the majority opinion22—Roberts v. Boston, 5 
Cush. (Mass.) 198 (1849), decided almost twenty years be­
fore the adoption of the Fourteenth Amendment. Yet, it 
was the very diversity of opinion, so pronounced in 1849, 
on the reasonableness of legal distinctions based on race 
which the Fourteenth Amendment sought to settle. Ante­
bellum justifications of segregation have no more logical 
place in the interpretation of the Fourteenth Amendment 
than antebellum notions of voting restrictions have in de­
fining the scope and meaning of the Fifteenth Amendment.

In addition, Plessy v. Ferguson was decided upon plead­
ings which assumed a theoretical equality within segrega­
tion rather than on a full hearing and evidence which would 
have revealed equality to be impossible under a system of 
segregation.

An examination of the other decisions of this Court upon 
which the lower court relied shows that the doctrine of 
Plessy v. Ferguson has not been reexamined nor seriously 
challenged.

In Cummings v. Board of Education, supra, the issue of 
the validity of the segregation statute was not even raised. 
In fact plaintiffs there acquiesced in the use of taxes levied 
to support segregated schools at the elementary and inter­
mediate grammar school levels. The main purpose of the 
suit was to secure an injunction forcing the discontinuance 
of a high school for whites since no school was being 
maintained for Negroes. This remedy the Court considered 
improper.

In Gong Lum v. Rice, supra, again the question was not 
raised. The primary issue there was whether a Chinese * 93

22 Other cases cited in the opinion include: People v. Gallagher,
93 N. Y . 438; and Ward v. Flood, 48 Cal. 36; State, Games v. M c­
Cann, 21 Ohio. St. 210; Lehew  v. Brummell, 103 Mo. 546; Cory v. 
Carter, 48 Ind. 337; Dawson v. Lee, 83 Ky. 49.



25

could be excluded from the white schools under the segre­
gation statutes of Mississippi, and could be classified as a 
colored person and required to attend the Negro school.23

In the Gaines case, supra, although the doctrine of 
Plessy v. Ferguson was repeated, it was neither examined 
nor applied. There the main issue before the Court was 
whether a qualified Negro applicant could be excluded from 
the only state supported law school. The Court decided that 
question in the negative.

In Sipuel v. Board of Regents, supra, the doctrine 
of Plessy v. Ferguson was neither raised, examined, re­
peated nor applied. The Court specifically stated that the 
appellant was entitled to receive educational benefits at the 
same time and as soon as it was offered to applicants of 
any other group. Moreover in Fisher v. Hurst, 333 U. S. 
147, the same case, supra, this Court was asked to issue an 
original petition for a writ of mandamus to compel com­
pliance with its mandate there. The Court denied the writ 
on the grounds that the original Sipuel case had specifically 
not raised the issue of the validity of the segregation stat­
utes and that procedurally the question could not be con­
sidered on the petition for writ of mandamus.

23 It is true that Mr. Chief Justice T a f t , op. cit., supra, at page 
85 in discussing the issue said: “ Were this a new question it would 
call for very full argument and consideration, but we think that it 
is the same question which has been many times decided to be within 
the constitutional power o f the State Legislature to settle without 
intervention o f the Federal Courts under the Federal Constitution.” 
Therefore, even if this decision is construed as raising the issue o f the 
validity o f school segregation statutes, it is clear that the doctrine was 
not examined and that Plessy. v. Ferguson was relied upon without 
question.



This is the group of cases upon which the separate but 
equal doctrine under the Fourteenth Amendment is said to 
depend.24 The inconsistencies between the “ separate hut 
equal”  doctrine of Plessy v. Ferguson and the reasoning 
and holdings of a considerable body of decisions of this 
Court become readily apparent when analysis is made in 
terms of the fundamental question, common to all, whether 
racial differences can be made the bases for legislative dis­
tinctions in the face of the Fourteenth Amendment. Except 
in Plessy v. Ferguson, supra, and the decisions which rely 
uncritically upon it, this Court has consistently concluded 
that the Fourteenth Amendment prohibits the states from 
making racial differences and other arbitrary distinctions 
the bases for general classifications. This impressive and 
carefully considered group of cases includes: Takahashi v. 
Fish <& Game Commission, 332 U. S. 410, 420 L. ed. 1096, 
1101; Oyama v. California, 332 U. S. 633, 640, 646; Shelley 
v. Kraemer, 334 U. 8. 1, 20, 23; Yick Wo v. Hopkins, 118 
U. S. 356, 373, 374; Buchanan v. Warley, 245 U. S. 60, 82; 
Hill v. Texas, 316 U. S. 400, 404; Strauder v. West Virginia, 
100 U. S. 303, 307, 308; Truax v. Raich, 239 U. S. 33, 41, 42;

24 Another case in point but not relied upon by the court below 
is Berea College v. Kentucky, 211 U. S. 45. That case appears 
to accept the doctrine insofar as the power o f the state to place 
conditions on a corporate charter. Hall v. DeCuir, supra; McCabe v. 
Atchison, T. & S. F. R. Co., 235 U. S. 151; Mitchell v. United States, 
313 U. S. 80 were decided under the Commerce Clause o f the Federal 
Constitution and need not be considered in a decision as to the validity 
o f the equal but separate doctrine within the meaning o f the Four­
teenth Amendment. The foundation of even those cases, however, 
seems to have been shaken. Compare Morgan v. Virginia, 328 U. S. 
373; Bob-Lo Excursion Co. v. Michigan, 333 U. S. 28.



27

Virginia v. Rieves, 100 U. S. 313, 322; Ex Parte Virginia, 
100 U. S. 339, 344, 345.23

These eases merely apply to racial distinctions the gen­
eral constitutional principle applicable in all other areas. 
Their rationale is merely a part of and consistent with the 
basic principle that all governmental classifications must be 
based upon a significant difference having a reasonable rela­
tionship to the subject matter of the statute. Southern 
Railway Co. v. Greene, 216 U. S. 400, 417; Gulf Colorado & 
Sante Fe Railway Co. v. Ellis, 165 U. S. 150, 155; Connolly 
v. Union Sewer Pipe Co., 184 U. 8. 540, 559, 560; Atchison 
Topeka <& Santa Fe Railway Co. v. Vosburg, 238 U. S. 56, 
60, 61; Royster Guano Co. v. Virginia, 253 U. S. 412, 416, 
417; Smith v. Cahoon, 283 IT. S. 553, 566, 567; Hartford 
Steam Roller Inspection <fs Insurance Co. v. Harrison, 301 
IT. S. 459, 462, 463; Colgate v. Harvey, 296 IT. S. 404, 422, 
423; Mayflower Farms v. Ten. Eyck, 297 IT. S. 266, 274; 
Skinner v. Oklahoma, 316 IT. S. 535, 541, 542; Louisville Gas 
<& Electric Co. v. Cohen, 277 IT. S. 32, 37; Quaker City Cab 
Co. v. Pennsylvania, 277 IT. S. 389, 400; Powers Mfg. Co. v. 
Saunders, 274 IT. S. 490, 493; Truax v. Corrigan, 257 IT. S. 
312, 337; Cotting v. Kansas City Stock Yards Co., 183 IT. S. 
79, 106, 107. 25

25 Takahashi v. Fish & Gdme Commission; Yick W o  v. Hopkins 
and Truax v. Raich involved the right to engage in a useful occupa­
tion. Oyama v. California, Shelley v. Kraemer and Buchanan v. 
Warley involved the right to own, occupy, sell and lease real prop­
erty. Hill v. Texas, Strauder v. W est Virginia, Virginia v. Rieves 
and E x Parte Virginia, involved the right of Negroes to be free o f 
discrimination in the selection and composition of grand and petit 
juries.

Despite the different problems involved, the Court made the 
same fundamental approach to each case. Underlying each decision 
is the basic proposition that race alone cannot be a valid criterion upon 
which to sustain governmental action under the 14th Amendment. 
Finding on examination that the real purpose and effect of the state’s 
action was racial discrimination, no difficulty was encountered in 
declaring the action unconstitutional.



28

Neither the decision nor the rationale of Plessy v. Fer­
guson can be reconciled with this impressive body of au­
thorities.

The Court below in relying on Plessy V. Ferguson and in 
ignoring this body of cases has improperly and mistakenly 
construed the limitations of the Fourteenth Amendment as 
applied to the instant case. For not only is Plessy v. Fer­
guson inconsistent with many decisions of this Court, but it 
was wrongly decided. In sustaining a statute based upon 
a difference in the color of citizens, this Court made a 
radical departure from the body of cases, cited supra, under 
which such a distinction would have necessarily' been con­
strued as arbitrary and therefore unlawful. In requiring 
that a classification be based upon a significant difference 
having a reasonable relationship to the subject matter of the 
statute, that body of decisions rests upon a sound founda­
tion. The same principle should be controlling in the in­
stant case. Any other approach makes the equal protection 
clause meaningless. Insofar as Plessy v. Ferguson affects 
the application of that principle to the instant case, it 
should not be followed.

Ill

This Court should review and reverse the judgment 
below to prevent the several states from being free to 
restrict Negroes to public educational facilities clearly 
inferior to those provided for all other persons simi­
larly situated through the device of arbitrary judicial 
decision that such discriminatory action provides “sub­
stantial equality” .

Texas and sixteen other states have insisted that public 
education can only be furnished on a basis of racial distinc­



29

tion between students. The purpose of this practice is to 
exclude Negroes from the recognized state educational in­
stitutions. The record in this case, as in other cases, will 
demonstrate that these states first establish facilities for 
non-Negroes. Later, either as a result of legal action or 
other compulsion, separate institutions have been estab­
lished for Negroes.

The record in this case, the record in similar cases, 
governmental and private studies, demonstrate clearly that 
the separate Negro facilities are never equal to the facilities 
established for other groups. In short, we have been unable 
to find a single recognized study of public education on a 
segregated basis which reveals equality of opportunity as 
between the segregated and non-segregated schools. The 
Negro school is invariably an inferior school.

The “ separate but equal”  doctrine of Plessy v. 
Ferguson, relied upon by Texas and the other southern 
states is based on the hypothesis that equal facilities can be 
realized in a segregated school system. The record in this 
case and in other cases has demonstrated the invalidity of 
such a hypothesis. It is clear not only that the doctrine of 
“ separate but equal”  has not produced equality, but can 
never provide the equality required by the Fourteenth 
Amendment.

This separate but equal doctrine has brought about con­
stant and continual litigation. Negroes have gone to the 
courts in Missouri,26 South Carolina,27 Tennessee,28 Louisi-

*8 Missouri, ex  rel. Gaines v. Canada, supra; Bluford v. Canada,
a o'i ? upP- (1940) (Appeal dismissed 119 F. (2d) 779 (C. C.A . 8th) ) .

27 W rightenv. Board o f Trustees, 72 F. Supp. 948.
28 State, ex  rel. Michael v. Whitham, 179 Tenn. 250 165 S W  

(2d) 378 (1942).



30

ana,29 Oklahoma,30 * Maryland,81 Kentucky,32 and Texas in 
order to secure educational advantages equal to those being 
offered to all other qualified persons. The formula con­
stantly invites such court action. In all instances this has 
meant loss of time and years out of an individual’s career, 
while his case pursues its way through the courts. This 
very fact shows the weakness of the doctrine.

The states are more interested in maintaining segrega­
tion than in affording equality. Hence the separate but 
equal doctrine has now become the “ separate but substan­
tially equivalent”  doctrine. The record in this case is a 
clear example of the circuitous route forced upon a Negro 
litigant seeking only to enforce a right recognized as belong­
ing to every other qualified applicant except those who 
happen to be Negroes.

Petitioner in this case applied for admission to the exist­
ing state law school on February 26, 1946. All qualified 
students other than Negroes who applied at the same time 
and who successfully passed their examinations are now 
either practicing law or are ready to take the bar examina­
tion for that purpose. On the other hand, the petitioner, 
solely because of his race and color, after long, extended 
and involved litigation is still without a legal education.

29 Louisiana, ex  rel. Hatfield v. Louisiana State University (File 
25,520, State Court for the 19th Judicial District).

S0Sipuel v. Board o f  Regents, supra; Fisher v. Hurst, supra; 
McLaurin v. Oklahoma State Regents, No. 614, U. S. Supreme 
Court, Oct. Term, 1948.

81 Pearson v. Murray, 169 Md. 4^8, 182 Atl. 590 (1936).

32 Johnson v. Board o f Trustees (File No. 625, U. S. Dist. Court 
for the Eastern Dist. o f Kentucky).



31

At the first hearing in this case, although the trial court 
concluded that petitioner had been denied rights guaranteed 
by the Constitution, nevertheless, because of the separate 
but equal doctrine, it refused to issue the order for the 
necessary relief and allowed the state six months in which 
to set up the facility separate from that in existence at the 
University of Texas. At the end of the six months’ period 
the trial court again reverted to the separate hut equal doc­
trine and found that petitioner had been given substantially 
equivalent educational opportunities to that afforded to 
whites at the University of Texas on the mere promise of 
the state to establish a law school for Negroes in Houston.

At the third hearing, this same court in the face of peti­
tioner’s testimony which conclusively established that the 
facilities in the basement law school at Austin, faculty, 
library and in all respects were in no way equal or substan­
tially equivalent to the law school at the University of Texas 
found that this makeshift school established over night in a 
basement of a building afforded to petitioner “ equal if not 
better opportunities for the study of law,”  than he could 
obtain at the University of Texas.

The Court of Civil Appeals in the face of this clear 
evidence showing that the Negro school was inferior to 
the white school agreed with the petitioner that there could 
be no substantial equality, the two words being incom­
patible in themselves, but said the Court:

“ This is of course true in pure, as distinguished 
from applied, mathematics. ‘ Equality’ like all ab­
stract nouns must be defined and construed accord­
ing to the context or setting in which it is employed. 
Pure mathematics deals with abstract relations, 
predicated upon units of value which it defines or 
assumes as equal. Its equations are therefore exact. 
But in this sense there are no equations in nature;



32

at least not demonstrably so. Equations in nature 
are manifestly only approximations (working hy­
potheses) ; their accuracy depending upon a proper 
evaluation of their units or standards of value as 
applied to the subject matter involved and the ob­
jectives in view. It is in this sense that the decisions 
upholding the power of segregation in public schools 
as not violative of the fourteenth amendment, em­
ploy the expressions ‘ equal ’ and ‘ substantially equal ’ 
and as synonymous”  (R. 449).

The most authoritative studies made on public education 
in the United States clearly indicate that the Negro insti­
tutions are vastly inferior to the whites. Yet when faced 
with the necessity of holding Negro institutions to be in­
ferior to the white and therefore to order the admission of 
the Negro to the white institution, courts have fallen back 
on the formula “ substantially equivalent”  to justify their 
decision to refuse the admission of the Negro into the white 
institution.

If it were not for the constitutional and statutory pro­
visions requiring segregation in public education in Texas, 
there could be little doubt that the lower courts would have 
ordered the admission of the petitioner. If it were not for 
the existence of the “ separate but equal”  doctrine, the 
lower courts would have had no difficulty in declaring that 
said constitutional and statutory provisions were unreason­
able classifications and therefore unlawful. But for the 
“ separate but equal doctrine” , the Texas courts would not 
have been able to justify the Negro law school as “ substan­
tially equivalent”  and would have declared the constitu­
tional and statutory provisions to be unreasonable classi­
fications in violation of the Fourteenth Amendment.

Therefore, the only way for the petitioner in this case 
and other qualified Negroes to obtain a legal education equal



33

to that obtained by all other qualified applicants is by ad­
mission to the recognized state institutions. The only way 
this can be accomplished is for this Court to reconsider the 
doctrine of Plessy v. Ferguson and overrule it.

CONCLUSION

W herefore, it is respectfully submitted that this petition 
for writ o f certiorari to review the judgment o f the court 
below, should be granted.

W. J. D urham,
W illiam H. H astie, 
W illiam R. Ming, J r.,
James M. R a b b it , Jb., 
T hubgood Marshall,

Attorneys for Petitioner,

R obert L. Carter,
E. B. B unkley, Je.,
Harry Bellinger,
U. 8. Tate,

Of Counsel.



L awyers P ress, I nc., 165 William St., N. Y. C. 7; ’Phone: BEekman 3-2300







NUMBER 9684

IN THE

Court o f Civil Appeals
For the Third Supreme Judicial District of Texas, 

at Austin, Texas

HEMAN MARION SWEATT,

versus
Appellant,

THEOPHILUS SHICKEL PAINTER, ET.AL.,
Appellees.

APPEALED FROM THE DISTRICT COURT OF TRAVIS COUNTY

BRIEF FOR APPELLANT

W. J. Durham of Dallas 
T hurgood Marshall of New York 
Attorneys for Appellant.



■



I N D E X

PAGE

Statement of the Nature of the Case  _____________ 1

Points Upon Which the Appeal is Predicated______ 2

Preliminary Statement ____ :_____________________  3

First Point—The Court erred in sustaining appel­
lees’ special exception to allegation 3 of appel­
lant’s second supplemental petition. (Re-stated) 5

Statement Under First Point__________________  5

Authorities Listed _________________________   7

Argument and Authorities Discussed___________  7

Second Point—The Trial Court erred in excluding 
the testimony of the witness, Dr. Charles H. 
Thompson, with reference to the quantity and 
quality of education offered at the universities 
and colleges, other than Prairie View College, 
maintained by the State of Texas (S. F. beginning 
with the last question on p. 387 to p. 469, inclu­
sive). (Re-stated) ___________________________  10

Statement Under Second Point _______________  10

Authorities Listed ________   10

Argument and Authorities Discussed___________ 11



11

PAGE

Third Point—The Court erred in excluding the evi­
dence of the appellant as to the admission of 
Donald Murray to the-law school of the University 
of Maryland and the results thereof in a situa­
tion analogous to the instant case, as shown in 
appellant’s bill of exception, as fully set out (S.
F. pp. 478-482). (Re-stated) __________________  14

Statement Under Third Point____-___ _________  14

Argument ____________________ 1_____________ 16

Fourth Point—The Court erred in holding that the 
proposal of the State to establish a racially seg­
regated law school afforded the equality required 
by the equal protection clause of the Fourteenth 
Amendment to the Constitution of the United 
States and thus justified the denial of appellant’s 
petition for admission to the law school of the
University of Texas. (Re-stated) ______________  16

Statement Under Fourth Point _______________  16

Argument and Authorities Listed _____________  20

I Courts have invalidated racial classifications 
imposed by states in a great variety of situa­
tions as denials of equal protection of the law 20

II The doctrine of racially “ separate but equal”  
public facilities is merely a constitutional 
hypothesis which has no application where 
racial segregation is shown to be inconsistent 
with equality ____________________________  24



Ill

III The demonstration in this record that raci­
ally separate schools in fact and inevitably 
deny the equality required by the Fourteenth 
Amendment, precludes the application of any 
“ separate but equal”  doctrine in the field of 
public education and in the circumstances of

PAGE

this case ________________________________  36

A. The law school set up by appellees does
not meet the requirements of the Four­
teenth Amendment____________________  36

B. The law school set up by appellees cannot
meet the requirements of the Fourteenth 
Amendment _________ ______________ _ 40

C. The function of a state-supported law
school______________      43

D. The expert testimony introduced at the 
trial establishes that there is no rational 
justification for segregation in profes­
sional education and that substantial dis­
crimination is a necessary consequence of 
any separation of professional students 
on the basis of color___________________  49

Conclusion ____________________________ __________  63



IV

Table of Cases
PAGE

Aiken v. Woodward (Tex. Civ. App.), 241 S. W. 1117 3
Alston v. School Board, 112 F. (2d) 992____________  21
Brown v. Mississippi, 297 U. S. 278 ____ ________  21
Buchanan v. Warley, 245 U. S. 60______________ __  21
Carter v. Texas, 177 U. S. 442 ________________ ..._ 21
Chambers v. Florida, 309 U. S. 227 _______________  21
Cummings v. Richmond County Board of Educa­

tion, 175 IT. S. 528 _’________ ■________,________  33
Elmore v. Rice, et al., Unreported (U. S. D. C. E. D.

So. C.) 7/12/47 ____________ 1_________________1 24
Gong Lum v. Rice, 275 U. S. 78____________ ________ 34
Harmon v. Tyler, 273 U. S. 668____ ...______________  21
Hill v. Texas, 316 U. S. 400_______________________ 21
Hirabayashi v. U. S., 320 U. S. 8 1 _______________31, 32
Lane v. Wilson, 307 U. S. 268 ____________________ 23

, Missouri ex rel. Gaines v. Canada, 305 U. S. 337 ...._3, 34
Morgan v. Virginia, 328 U. S. 373 ________ ________ 25
Newman, Ex parte, 14 Wall 132, 20 L. Ed. 877______ 3
Norris v. Alabama, 294 U. S. 587 __________________  21
Panhandle Grain & Elevator Co. v. Dowling, 247

S. W. 873 _______________________ _____________  11
Pearson v. Murray, 169 Md. 478, 182 A. 540 ________ 3
Pierce v. Allen, et al., 278 S. W. 453 _______ ..._____  7, 9
Pierre v. Louisiana, 306 U. S. 354 _________________  21
Plessy v. Ferguson, 163 U. S. 537 _____________ 29, 30, 33
Railway Mail Association v. Corsi, 326 U. S. 88____ 22
Richmond v. Deans, 281 U. S. 704 ________________  21
Ridgeway v. City of Ft. Worth, 243 S. W. 704 _____ 3
Roberts v. Boston, 5 Cush. 198___________________  30



V

San Antonio Traction Co. v. Higdon, 123 S. W.
PAGE

732 _______________________________________ 10,12
Smith v. Fort, 58 S. W. (2d) 1080 _________________  7
Smith v. Texas, 311 U. S. 128_____________________  21
Standifer v. Bond Hardware Co., 94 S. W. 144_...__ 7
Steele v. L. N. R. R. Co., 323 U. S. 192____________ 33
Strauder v. W. Va., 100 U. S. 303, 306, 307, 308 ___ 26, 28
Ward v. Flood, 48 Cal. 36________________________  3
Ward v. Texas, 316 U. S. 547 _____________________  21
Ware v. Schaeffer, et al., 29 S. W. 756 ____________  11
Wertzman, et ux. v. Lee, 262 S. W. 859 ____________ 7
White v. Texas, 309 H. S. 631____________________  21

Authorities Cited

American Jurisprudence 35, Sec. 377, p. 115_______  3
American Teachers Association Study on The Black 

and White of Rejections for Military Service 
(1944) _____________________________    52

Ballantine, H. W., The Place In Legal Education 
of Evening and Correspondence Law Schools, 4
Am. Law School Rev. 369 (1918)____________ -39, 42

Boyer, Smaller Law Schools: Factors Affecting 
Their Methods and Objectives, 20 Oregon Law
Rev. 281 (1941)__________________________ 38,42,44

Brown, Esther Lucile, Lawyers and the Promotion 
of Justice (1938)___________________________ ___42, 46

Cantril, H., The Psychology of Social Movements
(1941) ______ ,________________________________ 51

Chairman’s Address, ABA Section on Legal Edu­
cation, 1 Am. Law School Rev. 337 (1905)______ 48

Clark, Contrast: The Full Time Approved Law 
School Compared With The Hnapproved Evening
School, 20 ABA Journal 548 (1934)__ _.______ _ 42

Clark, W. W., Los Angeles Negro Children, Educa­
tional Research Bulletin (1923).. 52



V I

PAGE

Dunbar, Charles E., Address before the AALS on the 
ABA Program in the Field of Legal Education 
and Admission to the Bar and the Part-Time 
School Problem, Handbook, A. A. L. S. (1939).... 48

Horack, Law Schools of Today and Tomorrow, 6 
Am. Law School Rev. 658 (1927)______ ______ 38,42

Johnson, Charles S., Patterns Negro Segregation 
(1943) ------------------------------------- ---------------------- 50

Klineberg, Otto, Negro Intelligence and Selective 
Migration (1935) ____  52

Mangum, Charles S., Jr., The Legal Status of the
Negro (1940) _________________________________ 50

Maxwell, Lawrence, Jr., Chairman’s Address, Sec­
tion of Legal Education of the ABA, 1 Am. Law
School Rev. 337 (1905)________________________  42

McCormick, C. T., The Place and Future of the State 
University Law School, 24 N. C. Law Rev. 441... 44

McGlovney, Racial Residential Segregation by State 
Court Enforcement of Restrictive Agreements, 
Covenants or Conditions in Deeds is Unconsti­
tutional, 33 Cal. Law Rev. 5 (1945)_______________53

McWilliams, Carey, Race Discrimination and the 
Law— S c ie n c e  a n d  S o c ie t y , Vol. IX No. 1 (1945) 50

Myrdal, Gunnar, An American Dilemma (1944)..27, 50, 51
Peterson & Lanier, Studies in the Comparative Abili­

ties of Whites and Negroes—M e n t a l  M e a s u r e ­
m e n t — M o n o g r a p h s , 5:1-156, 1929_______........____ 52

President’s Address—17th Annual Meeting AALS,
4 Am. Law School Rev. 337 (1.919)_____________  48

Reed, A. Z., Present Day Law Schools (1928)______ 42
Reed, A. Z., Social Desirability of Evening or Part 

Time Law Schools, 7 Am. Law School Rev. 198
(1931) ______________________________________42,46

Report of the 36th Annual Meeting AALS, 9 Am.
Law School Rev. 233 (1938), Consolidation of 
Legal Education in Dallas_____r_______________ 38,47



vn

Snyder, The Function of the Night Law School, 7 
Am. Law School Review 827 (1933)_________ ___ 42

Stone, Harlan F., Address, 17th Annual Meeting 
AALS, 4 Am. Law School Rev. 483 (1919)______ 42

Storey, Progress in Legal Education, Texas Bar 
Journal, Vol. 1, No. 5 (1938)__________________ 38,48

Texas Constitution, Sec. 7, Art. 7_________________  4
Thompson, Charles H., Some Critical Aspects of the 

Problem of the Higher and Professional Educa­
tion for Negroes—J ournal op Negro E ducation 
(Fall 1945) __________________________________  60

Townes, John C., Organization and Operation of a 
Law School, 2 Am. Law School Beview 436_____ 39

University of Texas Publication—No. 4529, August 
1, 1945, School of Law________________________  37

Vance, The Function of the State-Supported Law 
School, 3 Am. Law School Rev. 409 (1914)______42, 44

Weltfish, dene, Causes of Croup Antagonism— J our­
nal op Social Issues, Vol. 1

PAGE

51





NUMBER 9684

IK THE

Court of Civil Appeals
For the Third Supreme Judicial District of Texas, 

at Austin, Texas

Heman Marion Sweatt, Appellant,

versus

T heophilus Shickel P ainter, et al., Appellees.

APPEALED FROM THE DISTRICT COURT OP TRAVIS COUNTY

BRIEF FOR APPELLANT

Statement of the Nature of the Case

This is an action in mandamus. Heman Marion 
Sweatt, appellant, on May 16, 1946, filed an application 
for a writ of mandamus in the 126th District Court of 
Travis County, Texas, against the members of the Board 
of Regents of the University of Texas, the acting Presi­
dent, the Dean of the School of Law and the Registrar 
of said University. The application for mandamus al­
leged that appellant was fully qualified for admission to 
the School of Law of the University of Texas, had duly 
applied for admission and had been refused admission 
solely because of his race or color in violation of the



2

Constitution and laws of the United States and of the 
State of Texas. On June 26, 1946 the Court entered an 
order that the action of appellees in denying admission 
to the appellant was a denial of appellant’s constitutional 
right to the equal protection of the laws, but issuance of 
the writ was stayed for six months to permit the State 
of Texas to establish a separate law school for Negroes 
substantially equivalent to the one at the University of 
Texas. On December 17, 1946, the Court below denied 
the writ of mandamus. To the judgment, appellant ex­
cepted and gave notice of appeal. The Court, on March 
26,1947, set aside the judgment of the Trial Court and re­
manded the cause generally. The case was then tried in 
the Court sitting without a jury, and a final judgment 
was rendered against appellant denying the application 
for writ of mandamus and taxing the cost against appel­
lant. From this judgment appellant now appeals.

POINTS UPON W HICH THE APPEAL IS
PREDICATED

First Point: The error of the Court in sustaining 
appellees’ special exception to allegation 3 of appel­
lant’s second supplemental petition.

Second Point: The error of the Court in exclud­
ing the testimony of the witness, Dr. Charles H. 
Thompson, with reference to the quantity and quality 
of education offered at the universities and colleges, 
other than Prairie View College, maintained by the 
State of Texas (S. F. beginning with the last ques­
tion on p. 387 to p. 469, inclusive). (Re-stated)



3

Third Point: The error of the Court in exclud­
ing the evidence of the appellant as to the admission 
of Donald Murray to the law school of the University 
of Maryland and the results thereof in a situation 
analogous to the instant case, as shown in appellant’s 
bill of exception, as fully set out (S. F. pp. 478-482).

Fourth Point: The error of the Court in holding 
that the proposal of the State to establish a racially 
segregated law school afforded the equality required 
by the equal protection clause of the Fourteenth 
Amendment to the Constitution of the United States 
and thus justified the denial of appellant’s petition 
for admission to the law school of the University of 
Texas.

Preliminary Statement

The appellant possesses all of the academic qualifi­
cations for admission to the law school (S. F. 265). This 
established a prima facie case for the issuance of the 
writ of mandamus.1 The burden of proof thereupon 
shifted to appellees to vindicate their conduct.2 This 
well recognized rule of procedure is required by Texas 
courts.3

1 Missouri ex rel. Gaines v. Canada, 305 U. S. 337 (1938 ); 
Pearson v. Murray, 169 Md. 478, 182 A. 540 (1936) ; V/ard v. 
Flood, 48 Cal. 36 (1874).

2 35 Am. Jur. Sec. 377, at 115, “ . . Where, however, [in man­
damus proceedings] the right and duty appears, the burden of 
proving matter set up by way of excuse for failure to act, or of 
justifying such failure to act, rests upon the respondent or defen­
dant.” To the same effect see 38 C. J. Sec. 671 at 915; E x parte 
Newman, 14 Wall 152, 20 L. Ed. 877 (1871) ; see also Missouri 
ex rel. Gaines v. Canada, supra; Pearson v. Murray, supra.

3 Ridgeway v. City oj Ft. Worth, 243 S. W . 704 (1922) ; Aike 
v. Woodward (Tex. Civ. A pp.), 241 S. W . 1117 (1922).



4

The appellant was refused admission to the law 
school solely because he was a Negro (S. F. 70, 144, 265). 
Had appellant been a member of any other racial group 
there is no question that he would have been admitted 
to the law school.

The appellees in refusing admission of appellant to 
the law school claimed to be acting pursuant to the Con­
stitution and laws of the State of Texas, specifically 
Section 7, Article 7 of the Constitution of Texas'(S. F. 
70).4 5

The entire defense of appellees is based upon this 
constitutional provision. Although the constitutionality 
of the separate school laws of Texas was directly in issue 
as a result of the pleadings in the case and the evidence 
presented at the trial, appellees made no effort whatso­
ever to support the validity of these statutes and obvi­
ously have relied solely on a presumption of constitu­
tionality.

The Trial Court, however, denied the petition for a 
writ of mandamus on the grounds that a separate law 
school for Negroes offering “ substantially equal” B facili­
ties had been established and that “ the constitutional 
right of the State to provide equal educational oppor­
tunities in separate schools”  was “ well established and 
long recognized by the highest State and Federal Courts.”

4 Section 7 of Article 7 of the Constitution of Texas provides: 
“ Separate schools shall be provided for the white and colored chil­
dren and impartial provision shall be made for both.”

5 The decision of the Trial Court first appealed from was based 
upon a theory of “ substantial”  equality. Despite the reversal of 
that decision the Trial Court continued in the belief that “ substan­
tial" equality meets the requirements of the Fourteenth Amendment 
and thereby ignores both the true meaning of equality and the 
purpose of the Fourteenth Amendment.



5

The record in the instant case for the first time pre­
sents testimony and documentary evidence clearly estab­
lishing that:

(1) There is no rational basis for racial classifi­
cation for school purposes.

(2) Public schools, “ separate but equal”  in theory 
are in fact and in practical administration 
consistently unequal and discriminatory.

(3) It is impossible to have the equality required 
by the Fourteenth Amendment in a public 
school system which relegates citizens of a 
disadvantaged racial minority group to sepa­
rate schools.

FIRST POINT

The Court erred in sustaining appellees’ special 
exception to allegation 3 of appellant’s second sup­
plemental petition. (Re-stated)

Statement Under First Point

The trial of this case was concluded on the 16th lay 
of May, 1947; and judgment was entered on the 17th day 
of June, 1947 (see Tr. p. 64).

The appellant’s attorneys were not present at the 
time the judgment was entered and exception sustained 
by the Court. The Court allowed appellant’s exception 
to the Court’s ruling sustaining said exception (see Judg­
ment of the Court, Tr. p. 64).



6

Appellees filed their first amended answer upon which 
the case went to trial. Allegation 2, Section 2 of said 
amended answer reads as follows:

“ Said Prairie View University was originally 
established in the year 1876 as an industrial and 
mechanical college for colored youths of Texas, 
and since that date, has been enlarged in scope to 
include other subjects as need therefor arose”  
(see Tr. p. 24).

In reply to such allegation, appellant filed his second 
supplemental petition and alleged as follows:

“ And further specially pleading "herein, Rela­
tor respectfully shows he was compelled to go out 
of the State of Texas, to-wit, in 1937 to the Uni­
versity of Michigan for the purpose of doing grad­
uate study in medical bacteriology and immunol­
ogy and preventive medicine, which were offered 
to white students at the University of Texas, but 
which was not offered at Prairie View University, 
the only school of higher learning for Negroes in 
Texas and supported by public funds.”

“ And Relator further alleges that Prairie View 
University did not, in 1937, offer equal education 
facilities to him which were available to whites at 
that time, at the University of Texas and other 
state-supported schools in Texas, nor does it now 
offer equal education facilities to him which are 
now available to whites at The University of Texas 
and other state-supported schools for whites in 
Texas”  (see Tr. p. 20).



7

Authorities Listed

Rule 80 of the Rules of Civil Procedure promulgated 
by the Supreme Court of Texas.

Pierce v. Allen, et al., 278 S. W. 453 (Syllabus
3);

Standifer v. Bond Hardware Co., 94 S. W. 144 
(Syllabus 1);

Smith v. Fort, 58 S. W. (2d) 1080 (Syllabus 5).

Argument and Authorities Discussed

It is elementary in this state that a litigant may not 
attack his own, pleadings. Appellees raised the issue by 
their pleading as to the quantity and quality of educa­
tion offered at Prairie View College, alleging in sub­
stance that the State of Texas had furnished the appel­
lant the training in Prairie View College since 1876 
which he was seeking in The University of Texas; that 
State of Texas, through Prairie View College, had offered 
the appellant the same quality and quantity of education 
that the State of Texas was offering to white citizens at 
other white institutions of learning, particularly The 
University of Texas and other state colleges, supported 
by public funds. This issue, having been raised by the 
appellees in their pleadings, could not be attacked by the 
appellees themselves. This appears to be holding in 
Wertsman, et ux. v. Lee, 262 S. W. 859 (Syllabus 6, Writ 
of Error refused by Supreme Court of Texas). The 
appellees raised the issue of the quantity and quality of 
education at Prairie View College, and took the position 
that the appellant had no right to reply to such defense. 
The quality and quantity of education offered appellant 
and citizens of the white race was one of the ultimate



8

issues in this law suit, and the burden to establish the 
fact that the State of Texas did not furnish appellant 
the quantity and quality of education offered white citi­
zens was on appellant, before he was entitled to the re­
lief sought.

To say that the rule in Texas with reference to plead­
ing is to allow the defendant to plead special defensive 
matter which goes to the heart of the plaintiff’s cause of 

. action; and that the plaintiff may not reply is equivalent 
to saying that the plaintiff may not have his day in Court 
on defensive matters pleaded by defendant. This is not 
the rule under the decisions in Texas. Appellant replied 
to appellees’ allegation as to the quantity and quality of 
education given at Prairie View College by supplemental 
petition. Rule 80 of the Rules promulgated by the Su­
preme Court of Texas for the trial of civil cases provides 
that a supplemental petition filed by the plaintiff may 
contain special exceptions, general denial, and the alle­
gation of new matters not before alleged by him in reply 
to those which have been alleged by the defendant. The 
allegation stricken from the record by the Court’s order 
was in reply to matters pleaded by the appellees.

Judge R o b e r t  W. S t a y t o x , in an address before the 
Dallas Bar Association October 4,1941, interpreting Rule 
80, stated:

“ The Texas supplemental pleading is as be­
fore. The plaintiff may employ special exceptions, 
is deemed to have denied the affirmative allega­
tions of the defendant, must specially plead all af­
firmative matters, and must use the equivalent of 
an answer in response to affirmative claim on de­
fendant’s part. Here again, the difference between 
the federal practice and the Texas practice lies in



9

the desire of the Texas rules to maintain a frame­
work for the case. ’ ’

In this ease, appellees followed the rules promulgated 
by the Supreme Court in answering the matters of de­
fense alleged by the appellees and the interpretation 
placed on Eule 80 by the Rules Committee; but the 
learned Trial Court struck out the answer contained in 
appellant’s supplemental petition and left the appellees’ 
allegation and special defense unanswered; and his judg­
ment says that the appellant has no right to answer such 
defensive matters. The higher courts in this state have 
decided the purpose and function of a supplemental peti­
tion; and the decisions of the higher courts, we believe, 
support the contention of appellant in this case. In 
Pierce v. Allen, et al., supra, Chief Justice Jackson, 
speaking for the Amarillo Court of Civil Appeals, dis­
posed of this issue in the following language:

“ The office of a supplemental petition is to reply 
to the answer of the defendant. It may set up new 
matters via confession and avoidance of the new 
matters pleaded in the answer or may contain 
additional facts responsive to such new matter 
which would entitle the plaintiff to affirmative re­
lief. ’ ’

It is obvious that the issue raised by the pleadings 
here under discussion raised a material issue, for if the 
State of Texas had afforded the same quantity and qual­
ity of education to the appellant as it furnished to the 
white citizens of Texas, there would be no controversy. 
The issue here raised was the determining factor in this 
law suit, and we submit that the learned Trial Court erred 
in sustaining such exception.



10

SECOND POINT

Tihe Trial Court erred in excluding the testimony 
of the witness, Dr. Charles H. Thompson, with ref­
erence to the quantity and quality of education of­
fered at the universities and colleges, other than 
Prairie View College, maintained by the State of 
Texas (S. F. beginning with the last question on p. 
387 to p. 489, inclusive). (Re-stated)

Statement Under Second Point

We adopt statement under First Point as the state­
ment under this Point.

The case was concluded as before stated on the 16th 
day of May, 1947; and the judgment was actually ren­
dered on June 17, 1947, at which time, the appellant’s 
attorneys were not present, but the Trial Court allowed 
appellant’s exception to the ruling of the Court, excluding 
such evidence as shown (Tr. p. 64). And as a part of 
the statement under this Point, we refer to the testimony 
of the witness, Dr. Charles H. Thompson (S. F. pp. 380- 
469, inclusive). (To copy the entire testimony of Dr. 
Thompson in this brief would do violence to the rules 
governing the preparation of briefs.)

Authorities Listed

Rule 373 of the Rules of Civil Procedure promulgated 
by the Supreme Court of Texas for trial of civil cases.

San Antonio Traction Company v. Higdon, 123 
S. W. 732 (syllabi 1, 2, 3, and 4);



11

Ware v. Schaeffer, et al., 29 S. W. 756 (syllabus 
1, Supreme Court of Texas);

Panhandle Grain <& Elevator Co. v. Dowling, 
247 S. W. 873 (syllabus 20).

Argument and Authorities Discussed

The issue as to the quantity and quality of education 
was raised by the first amended answer of the appellees 
and the second supplemental petition of the appellant. 
A reading of the appellant’s second supplemental peti­
tion and the appellees first amended answer will leave 
no doubt in our opinion with reference to the issue being 
raised as to the quantity and quality of education at the 
other educational institutions maintained by the State of 
Texas, and the quality and quantity of education offered 
at Prairie View College. The ultimate issue in this law 
suit is the quantity and quality of education offered 
appellant by the State of Texas and the quantity and 
quality of education offered other citizens not of the same 
race as appellant at the universities and colleges main­
tained and supported by the State of Texas, from which 
appellant is excluded. The appellees contended that the 
appellant’s constitutional rights had not been violated 
for he was offered the same quantity and quality of edu­
cation at Prairie View College as was offered to the white 
citizens of Texas at the universities and other colleges 
of Texas. These issues were squarely joined, appellees 
alleging that the State of Texas had met its obligation 
by furnishing the same quantity and quality of education 
to appellant at Prairie View College as the State of Texas 
furnished its white citizens at the universities and other



1 2

colleges supported by the State of Texas, from which 
appellant was excluded. The appellant denied such alle­
gation and alleged that the State of Texas had never 
offered the same quantity and quality of education at 
Prairie View College as is offered at The University of 
Texas and other colleges supported by the State of Texas. 
Thus, a material issue was joined by the pleadings of the 
parties. The testimony excluded was in support of appel­
lant’s theory that the same quantity and quality of educa­
tion was not offered and had never been offered at Prairie 
View College, as the quality and quantity of education 
offered at the universities and other colleges of Texas 
other than Prairie View.

The learned Trial Court, by its judgment, says that 
the appellant had no legal right to dispute such allegation 
or to offer any testimony tending to disprove such ma­
terial defense. We, therefore, submit that the Trial Court 
erred. This question is not an open question in the courts 
of Texas. The question has been decided many times by 
the courts of Texas and contrary to the holding of the 
learned Trial Court. In the case of San Antonio Trac­
tion Co. v. Higdon, Justice Neal, speaking for the Court 
upon a similar question as the question here presented, 
.jsed the following language:

“ The meaning of the word ‘ relevant’ as applied 
to testimony is that it directly touches upon the 
issues which the parties have made by their plead­
ing so as to assist in getting at the truth of it.
It is not necessary, however, that it should itself 
bear directly upon the points in issue, for, if it be 
but a link in the chain of evidence tending to prove



13
u

the issue by reasonable inference, it may neverthe­
less be relevant.
From these elementary principles, it logically fol­
lows that to determine the relevancy of evidence, 
the pleadings of the parties must first be looked to 
for the purpose of ascertaining the issue.”

The Court further said:

‘ 4 But the Court’s determining in this manner what 
the issues of fact will under the evidence be, sub­
mitted to the jury cannot serve as a test fur deter­
mining the relevancy of evidence introduced or 
offered upon the trial. Such tests can only be the 
pleadings of the parties for it is from them the 
issues of fact and of law primarily arise.”

When the rule of law set out above as to the test of 
the issues raised is considered and the record in this case 
is examined, it is in our opinion too clear for argument 
that the testimony of the witness, Dr. Charles H. Thomp­
son, was relevant as well as material to the issues of fact 
alleged in appellees’ first amended answer and appel­
lant’s second supplemental petition. If the judicial mind 
is focused upon the pleadings in this case, it will be Per­
ceived that the issue of the quantity and quality of ed ''ca­
tion offered at the universities and other colleges "sup­
ported by the State of Texas, other than Prairie View, 
was clearly raised, and that such issue was a material 
issue in the final determination of this law suit! We, 
therefore, submit that the learned Trial Court erred in 
sustaining appellant’s exception to the testimony of the 
witness, Dr. Charles H. Thompson, and excluding the 
same.



14

THIRD POINT

The Court erred in excluding the evidence of the 
appellant as to the admission of Donald Murray to 
the law school of the University of Maryland and 
the results thereof in a situation analogous to the 
instant case, as shown in appellant’s hill of excep­
tion, as fully set out (S. F. pp. 478-482). (Re-stated)

Statement Under Third Point

The testimony at the trial of this cause was not put 
on in the regular order by agreement of counsel (S. F. 
8). The testimony of Donald Murray was tendered in 
the middle of the trial and was excluded (S. F. 477-478). 
(To' copy this entire testimony in this brief would do 
violence to the rules, governing preparation of briefs.) 
This testimony appearing in appellant’s bill of exception 
shows that Donald Murray in a situation closely similar 
to the case at bar was denied admission to the law school 
of the University of Maryland and was admitted only 
after legal action. Despite beliefs that he would be 
ostracized and denied full participation, he was not 
ostracized or segregated, took part in all of the classes, 
participated in all activities and did not receive any un­
favorable treatment on the part of any student or pro­
fessor (8. F. 481). With the exception of separation of 
the races on buses and trolley cars in Austin there is no 
item of segregation in Austin that is not present in Balti­
more, Maryland (S. F. 481).

Latir in the trial during the testimony for appellees 
the folnwing took place:

“ Q. I will ask you whether or not you think 
the Negro student would have the same oppor-



15

tunity to develop leadership in a mixed institution, 
or at a separate institution! A. I think that nor­
mally, ordinarily, he would have a better oppor­
tunity to develop leadership in a separated insti­
tution than in a mixed institution, and I make 
that statement because the whole life of the insti­
tution would then be open to the Negro’s partici­
pation. My judgment is that particularly in the 
south, that the Negroes’ opportunities in institu­
tions patronized in the great majority by whites 
would be limited to the class room facilities, and 
the regular educational activities almost wholly.

Mr. Durham: Just a minute. Now, Your 
Honor, they have objected to that form of 
testimony. I don’t want to object to it, if I 
have got a right to reopen my testimony. I 
won’t object, if I have got a right to tender 
certain testimony that the Court excluded yes­
terday.

The Court: Of course, if it is the same, if 
this is admissible in rebuttal, testimony on 
your side would be admissible.

Mr. Durham: No objection”  (S. F. 534,
535).

TTThe sene witness was permitted to testify as tb his 
experiences with a Negro student at the University of 
Colorado in 1935 or 1936 and his opinion as to his lack 
of participation in college activities (S. F. 544-545). At 
the close of this testimony counsel for appellant again 
tendered the testimony of Donald Murray, and it was 
again excluded (S. F. 559).



16

Argument

The issues involved in this case are clear. There is 
no question as to the qualifications of appellant for a 
legal education. Appellees seeks to justify their refusal 
to admit him upon the provision of the Texas Consti­
tution requiring separation of Negro and other pupils. 
In an effort to defend the validity of these provisions 
appellees contend that separation of the Negro from 
other citizens is for the best interest and introduced 
testimony tending to show that Negroes are not accepted 
in school life where admitted to mixed schools. The same 
witness testified as to the dire results to be expected if 
Negroes are admitted in the law school of the University 
of Texas. It is, therefore, clear that the testimony of 
Donald Murray was not only germane to the issues in 
this case but was also clearly admissible in rebuttal to 
'the testimony of appellees.

FOURTH POINT

The Court erred in holding that the proposal of 
the State to establish a racially segregated law school 
afforded the equality required by the equal protec­
tion clause of the Fourteenth Amendment to the 
Constitution of the United States and thus justified 
the denial of appellant’s petition for admission to the 
law school of the University of Texas. (Re-stated)

Statement Under Fourth Point

The issues in this case are clear. There has never 
been any question of the qualifications of appellant for 
legal training. He applied for admission to the only law



17

school maintained by the State of Texas and was refused 
admission solely because of his race and color. Appel­
lees defend their action by relying upon Section 7 of Ar­
ticle 7 of the Constitution of Texas requiring separate 
schools for “ white and colored children.”

In the pleadings and evidence in the case, appellees 
relying on the Constitution of Texas claim that separate 
schools must be maintained and that they are complying 
with the other provision of the section requiring that 
“ impartial provision shall be made for both,”  by the 
establishment and maintenance of Prairie View Univer­
sity for Negroes and a new school to be established, and 
that this complies with the requirements of the Four­
teenth Amendment by establishing “ substantial”  equal­
ity. Appellant’s position is that insofar as this provi­
sion of the Constitution of Texas deprives him of the 
right to attend the law school of the University of Texas, 
it is unconstitutional and in violation of the Fourteenth 
Amendment.

Although Negroes have always been excluded from 
the University of Texas because of their race or color 
(S. F. 95), the State of Texas has never offered them 
“ separate but equal”  facilities (S. F. 94-96). As Pean 
Pettinger, a witness for appellees who has studied edu­
cational facilities for Negro and white students in Texas 
stated: “ I am unable to think for the moment of col­
ored institutions and white institutions which do have 
equal facilities with which I have been associated”  (S.
F. 547).

When appellant applied for a leg'al education the 
only law school in existence maintained by the State of 
Texas was the one at the University of Texas. He was



18

refused admission solely because of his race or color. 
At the time of the refusal and at the time this case was 
filed there was no other law school available. Equally 
qualified white students who applied at the same time 
have received more than a year of legal education fur­
nished by the State of Texas in an institution with more 
than sixty years of tradition and in a well equipped, well 
recognized and fully accredited law school.

The University of Texas has been in existence since 
the last century. The law school has been in existence 
for more than fifty years. The present law school was 
built in 1906 or 1907 (S. F. 81). The law school is rec­
ognized and accredited by every association in the field 
(S. F. 31). It is approved by the American Bar Asso­
ciation (S. F. 11), and is a member of the Association, 
of American Law Schools (S. F. 159). No law school 
can be accredited by either association in less than two 
years of continual compliance with its requirements (S. 
F. 21, 45, 159).

After this suit was filed, the State of Texas acting 
through its agents sought to establish some form of law 
school for Negroes in Houston in February, 1947 (see 
testimony of E. L, Angell, S. F. 46-59, 483-488). Be 
tween February and March 10, 1947, according to the 

' testimony of appellees, efforts were made to establish a 
law school for Negroes in Austin. The -so-called Austin 
school supposed to be ready for use on March 10th was 
to be in the basement of a building (S. F. 147) leased on 
February 28 until August 31, 1947 with an alleged op­
tion to lease until August 31, 1948 (S. F. 70, 81). No 
one knows for certain what will happen after that time 
although one of appellees’ witnesses assumed it would 
go to Houston (S. F. 88, 91). Dean Charles T . McCor­



19

mick of the University of Texas and former president of 
the Association of American Law Schools, called by the 
appellees testified:

“ Q. As a former President of the American 
Association of Law Schools, and as the Dean of 
several law schools, and as an outstanding author­
ity in several fields of law, Dean McCormick, do 
you—are you of the opinion that one of the basic 
elements in a great law school is the history and 
traditions which have been built up over years of 
time, including the graduates who have become 
famous in the State of Texas? Is that your opin­
ion—that is an element in a great law school? A. 
Yes, that is a source of pride to a law school that 
has that background.

“ Q. One other question on that along that same 
line. Is it, in your opinion, a good thing for a law 
school to be unstable as to its location, and to its 
faculty, sort of a roving school of law? Is that, 
in your opinion, an unsatisfactory condition in 
which to operate a law school? A. I would think 
that a roving law school would certainly not be an 
ideal school”  (S. F. 163-164).

It is admitted by the Chairman of the Board of Re­
gents of the University of Texas that no fair comparison 
can be made of the monetary value of the law school 
building at the University of Texas and those .of the pro­
posed law school for Negroes (S. F. 74).

When the Negro law school was to be ready for use 
on March 10th there was no library other than a few 
text-books (S. F. 150) and no librarian (S. F. 124) 
despite the fact that there was a well equipped library 
at the University of Texas with a full time librarian and 
assistants to aid the students (S. F. 230-231). Although 
students at the Negro school were to be permitted to use



2 0

the library in the capital it was admitted that this would 
not meet the requirements of the accrediting associa­
tions (S. F. 240). The books claimed to be on order were 
only requisitioned on the 25th of February (S. F. 69) 
and were not available on March 10 or the date of trial 
(S. F. 76).

The proposed faculty for the law school consisted of 
professors from the University of Texas who would give 
part time to the Negro school. No plans whatsoever 
were made for moot-court, scholarship aid or law review 
similar to the University of Texas. On the basis of what 
was available on March 10th, the proposed date for open­
ing the Negro school and the time of trial of this case 
the highest claim made by the appellees was that it fur­
nished facilities “ substantially”  equal (S. F. 16). Much 
reliance was placed on facilities such as building, library, 
faculty and other items to be furnished in the future.

On the other hand, appellant produced testimony and 
documentary evidence showing the inequality of the 
existing and proposed facilities and the discrimination 
inherent in a segregated system. The testimony of these 
experts which cannot be accurately digested stands un­
contradicted in this record.

ARGUMENT AND AUTHORITIES LISTED

I

Courts have invalidated racial classifications 
imposed by states in a great variety of situa­
tions as denials of equal protection of the law.

The Supreme Court has repeatedly struck down state 
statutes and practices imposing racism in diverse areas



21

of human activity. In judicial procedure for example, 
the Supreme Court has at every opportunity made it 
plain that racial distinctons are not to be tolerated. 
Whether in the exclusion of Negroes from the grand jury 
which has indicted a Negro,1 or in similar petit jury ex­
clusion,2 or in the intimidation or coercion of a Negro ac­
cused of crime,3 the Court has undertaken to see that 
judicial proceedings from preliminary investigation to 
judgment are free of racism.

A state is not permitted to impose residential segre­
gation by debarring Negroes from owning or occupying 
property in particular areas.4 Distinction may not be 
made between white and colored public school teachers 
in the fixing and payment of salaries.5 On the affirma­
tive side, the Supreme Court has found no difficulty in up­
holding a statute requiring labor unions to admit quali­
fied Negroes to membership, and, in so doing has pointed 
out that its ruling is in line with the fundamental policy 
of the Fourteenth Amendment:

“ A judicial determination that such legislation 
violated the Fourteenth Amendment would be a 
distortion of the policy manifested in that amend­
ment which was adopted to prevent state legisla­
tion designed to perpetuate discrimination on the

1 Carter v. Texas, 177 U. S. 442; Smith v. Texas, 311 U. S. 
128; Hill v. Texas, 316 U. S. 400.

2 Norris v. Alabama, 294 U. S. 587; Pierre v. Louisiana, 306 
U. S. 354.

3 Brown v. Mississippi, 297 U. S. 278; Chambers v. Florida, 
309 U. S. 227; White v. Texas, 309 U. S. 631; Ward v. Texas, 
316 U. S. 547.

4 Buchanan v. Warley, 245 U. S. 60; Harmon v. Tyler, 273 
U. S. 668; Richmond v. Deans, 281 U. S. 704.

5 Alston v. School Board, 112 F. (2d) 992 (certiorari denied, 
311 U. S. 693).



2 2

basis of race or color. We see no constitutional 
basis for the contention that a state cannot pro­
tect workers from exclusion solely on the basis of 
race, color or creed by an organization, functioning 
under the protection of the state, which holds it­
self out to represent the general business needs of 
employees.

“ To deny a fellow-employee membership be­
cause of race, color or creed may operate to pre­
vent that employee from having any part in the 
determination of labor policies to be promoted and 
adopted in the industry and deprive him of all 
means of protection from unfair treatment arising 
out of the fact that the terms imposed by a domi­
nant union apply to all employees, whether union 
members or not. In their very nature, racial and 
religious minorities are likely to be so small in 
number in any particular industry as to be unable 
to form an effective organization for securing set­
tlement of their grievances and consideration of 
their group aims with respect to conditions of em­
ployment. The fact that the employer is the Gov­
ernment has no significance from this point of 
view. ’ ’ 6

The history of the attempts of states to establish 
segregation in primary elections deserves special men­
tion. Here, for a long time the theory was urged that 
Negroes could not complain if they were excluded from 
the “ white”  primary but left free to conduct their own 
primary. As late as 1935 this sterile legalism based upon 
theory dissociated from the realities of voting'and elec­
tions prevailed in judicial decision. Even the Supreme

6 Railway Mail Association v. Corsi, 326 U. S. 88, at page 94 
(1945).



23

Court seemed unmindful of the broader significance of 
its declaration in another connection that:

“  • • . The Amendment [15th] nullifies sophis­
ticated as well as simple-minded modes of discrim­
ination. It hits onerous procedural requirements 
which effectively handicap exercise of the fran­
chise by the colored race although the abstract 
rights to vote may remain unrestricted as to 
race.”  7

and followed this unrealistic legalism as to primaries and 
thereby disfranchised 540,565 adult Negro citizens in 
Texas alone.

Recently, however, reexamining the segregated pri­
mary election device in the light of its actual conse­
quences, the Supreme Court has outlawed the white pri­
mary as a discriminatory and unconstitutional device, 
whether in Federal or state elections. The extent to 
which realism has prevailed in this field over a legalism 
dissociated from the actualities of human behavior is 
well illustrated by the following excerpt from an opinion 
handed down by the District Court of the United States 
for the Eastern District of South Carolina only a few 
months ago in granting an injunction restraining officials 
of the Democratic Party from excluding Negroes from 
voting in primary elections in South Carolina.

“ And so we are faced with the final decision 
as to whether or not the present Democratic Party 
of South Carolina, because it is no longer gov­
erned by State statutes, is a private organization 
and (as was said in argument) must be treated as 
a private business or social club, with which the 
State and National Governments have no concern;

7 Lane v. Wilsons 307 U. S. 268, 275.



24

or is it after all the determining body in the choice 
of National and State officers in South Carolina, 
or to use the' old homely illustration, is it the same 
horse although of a somewhat different color?
* # * # # # # # #

“ I am of the opinion that the present Demo­
cratic Party in South Carolina is acting for and 
on behalf of the people of South Carolina; and 
that the Primary held by it is the only practical 
place where one can express a choice in selecting 
federal and other officials. Racial distinctions can­
not exist in the machinery that selects the officers 
and lawmakers of the United States; and all citi­
zens of this State and Country are entitled to cast 
a free and untrammelled ballot in our elections, 
and if the only material and realistic elections are 
clothed with the name ‘ primary’, they are equally 
entitled to vote there. ’ ’ 8

II

The doctrine of racially “separate but equal” 
public facilities is merely a constitutional hy­
pothesis which has no application where racial 
segregation is shown to be inconsistent with 
equality.

Classifications and distinctions based on race or color 
have no moral or legal validity in our society. They are 
contrary to our constitution and laws, and the United 
States Supreme Court has struck down statutes, ordi­
nances or official policies seeking to establish such classi­
fications. In the decisions concerning intrastate trans­
portation and public education, however, that Court has 
adopted a different and antithetical constitutional doc-

8 Elmere v. Rice et al., No. 1702 (unreported— July 12, 1947).



25

trine under which racial separation is deemed permissible 
when equality is afforded. An examination of these de­
cisions will reveal that the “ separate but equal”  doctrine 
is at best a bare constitutional hypothesis postulated in 
the absence of facts showing the circumstances and conse­
quences of racial segregation and based upon a fallacious 
evaluation of the purpose and meaning inherent in any 
policy or theory of enforced racial separation. '

Many states have required segregation of Negroes 
from all other citizens in public schools and on public 
conveyances. The constitutionality of these provisions 
has seldom been seriously challenged. No presumption 
of constitutionality should be predicated on this non 
action. A similar situation existed for many years in 
the field of interstate travel where state statutes requir­
ing segregation in interstate transportation were con­
sidered to be valid and enforced in several states for 
generations and until the Supreme Court in 1946 held 
that such statutes were unconstitutional when applied 
to interstate passengers.9

Although separate school laws have been enforced by 
several states, an examination of the cases in the United 
States Supreme Court and lower courts will demonstrate 
that these statutes have never been seriously challenged 
nor their validity examined and tested upon a record 
adequately presenting the critical and decisive issues 
such as are presented by the record in this case:

(1) Whether there is a rational basis for racial 
classification for school purposes.

(2) Whether public schools, “ separate but equal”  
in theory are in fact and practical administra­
tion consistently unequal and discriminatory.

9 Morgan v. Virginia, 328 U. S. 373 (1946).



2 6

(3) Whether it is possible to have the equality 
required by the Fourteenth Amendment in a 
public school system, which relegates citizens 
of a disadvantaged racial minority group to 
separate schools.

The Thirteenth, Fourteenth and Fifteenth Amend­
ments were adopted for the purpose of securing to a 
recently emancipated race all the civil rights of other 
citizens.10 Unfortunately this has not been accomplished. 
The legislatures and officials of the southern states 
through legislative policy continued to prevent Negro 
citizens from obtaining their civil rights by means of 
actions which only gave lip service to the word ‘ ‘ equal. ’ ’ 
One of the most authoritative studies made of the prob­
lem of the Negro in the United States points out that:

“ While the federal Civil Rights Bill of 1875 
was declared unconstitutional, the Reconstruction 
Amendments to the Constitution—which provided 
that the Negroes are to enjoy full citizenship in 
the United States, that they are entitled to ‘ equal 
benefit of all laws,’ and that ‘no state shall make 
or enforce any law which shall abridge the privi­
leges and immunities of citizens of the United 
States’—could not be so easily disposed of. The 

. Southern whites, therefore, in passing their vari­
ous segregation laws to legalize social discrimina­
tion, had to manufacture a legal fiction of the same 
type as we have already met in the preceding dis­
cussion on politics and justice. The legal term for 
this trick in the social field, expressed or implied 
in most of the Jim Crow statutes, is ‘ separate, but 
equal.’ That is, Negroes were to get equal accom­
modations, but separate from the whites. It is 
evident, however, and rarely denied, that there is

10 Strander v. W est Virginia, 100 U. S. 303.



27

practically no single instance of segregation in the' 
South which has not been utilized for a significant 
discrimination. The great difference in quality of 
service for the two groups in the segregated set­
ups for transportation and education is merely the 
most obvious example of how segregation is an 
excuse for discrimination. Again the Southern 
white man is in the moral dilemma of having to 
frame his laws in terms of equality and to defend 
them before the Supreme Court—and before his 
own better conscience, which is tied to the Ameri­
can Creed—while knowing all the time that in 
reality his laws do not give equality to Negroes, 
and that he does not want them to do so.” 11

In one of the early cases interpreting these amend­
ments it was pointed out that: “ At the time when they 
were incorporated into the Constitution, it required little 
knowledge of human nature to anticipate that those who 
had long been regarded as an inferior and subject race 
would, when suddenly raised to the rank of citizenship, 
be looked upon with jealousy and positive dislike, and 
that state laws might be enacted or enforced to perpetuate 
the distinctions that had before existed. Discrimination 
against them had been habitual. It was well known that, 
in some States, laws making such discriminations .then 
existed, and others might well he expected. . . . They 
especially needed protection against unfriendly action in 
the States where they were resident. It was in view of 
these considerations the 14th Amendment was framed 
and adopted. It was designed to assure to the colored 
race the enjoyment of all the civil rights that under the 
law are enjoyed by white persons, and to give to that

11 An American Dilemma, by Gunnar Myrdal, published by 
Harper & Bros. (1944), Vol. 1, pages 580, 581.



2 8

race the protection of the General Government, in that 
enjoyment, whenever it should be denied by the States. 
It not only gave citizenship and the privileges of citizen­
ship to persons of color, but it denied to any State the 
power to withhold from them the equal protection of the 
laws, and authorized Congress to enforce its provisions 
by appropriate legislation.” 12

Mr. Justice Strong in this opinion also stated: “ The 
words of the Amendment, it is true, are prohibitory, but 
they contain a necessary implication of a positive im­
munity, or right, most valuable to the colored race—the 
right to exemption from unfriendly legislation against 
them distinctively as colored; exemption from legal dis­
crimination, implying inferiority in civil society, lessen­
ing the security of their enjoyment of the rights which 
others enjoy, and discriminations which are steps towards 
reducing them to the condition of a subject race.” 13

The equal protection clause of the Fourteenth Amend­
ment to the Constitution clearly guarantees to every 
citizen the right to complete equality as to all facilities 
of the state wherein the citizen resides. Yet, it has been 
argued that state statutes requiring the segregation of 
the races do not violate the Fourteenth Amendment. This 
doctrine has been based upon state court decisions and 
certain language in opinions of the United/ States Su­
preme Court.

It is. unfortunate that the first case to reach the Su­
preme Court on the question of whether or not segre­
gation of Negroes was a violation of the Fourteenth , 
Amendment should come to the Supreme Court during

12 Strauder v. W est Virginia, supra, at page 306.
13 Strauder v. W est Virginia, supra, at pages 307-308.



29

the period immediately after the Civil War when the 
Fourteenth Amendment was regarded as a very narrow 
limitation on state’s rights.

The first expression by the Supreme Court of the 
doctiine of separate but equal”  facilities in connection 
with the requirements of equal protection of the law ap­
pears in the case of Plessy v. Ferguson.1* That case in­
volved the validity of a state statute of Louisiana re­
quiring segregation on passenger vehicles. The peti­
tioner there claimed that the statute was unconstitu­
tional and void. A  demurrer by the State of Louisiana 
was sustained, and ultimately the United States Supreme 
Couit affirmed the judgment of the Louisiana courts in 
holding that the statute did not violate the Thirteenth 
Amendment nor did it violate the Fourteenth Amend­
ment. Mr. Justice B rown in his opinion for the ma­
jority of the Court pointed out that :

“ A statute which implies merely a legal dis­
tinction between the white and colored races—a 
distinction which is founded in the color of the 
two races, and which must always exist so long as 
white men are distinguished from the other ryce 
by color—has no tendency to destroy the h ; d 
equality of the two races, or reestablish a stateof 
involuntary servitude . . . ”

Mr. Justice B rown, in continuing, stated that the ob­
ject of the Fourteenth Amendment was to enforce abso­
lute equality before the law but:

“  . . . Laws permitting, and even requiring, their 
separation in places where they are liable to be 
brought into contact do not necessarily imply the 
inferiority of either race to the other, and have

14163 U ..S. 537, 543.



30

been generally, if not universally, recognized as 
within the competency of the state legislatures in 
the exercise of their police power. . . ,” 15

It should be noted that this case was based solely on 
the pleadings, and that there was no evidence either be­
fore the lower courts or the United States Supreme 
Court on either the unreasonableness of the racial dis­
tinctions or of the inequality resulting from segregation 
of Negro citizens. The plaintiff’s right to “ equality”  in 
fact was admitted by demurrer. The decision in the 
Plessy case appears to have been based upon the decision 
of Roberts v. Boston, 5 Cush. 198 (1849), a case decided 
before the Civil War and before the Fourteenth Amend­
ment was adopted. In the Plessy case, the majority 
opinion cites and relies upon language in the decision in 
the Roberts case and added: “ It was held that the powers 
of the Committee extended to the establishment of sepa­
rate schools for children of different ages, sexes and 
colors, and that they might also establish special schools 
for poor and neglected children, who have become too old 
to attend the primary school, and yet have not acquired 
the rudiments of learning, to enable them to enter the 
ordinary schools.” 16

Mr. Justice H a r la n  in his dissenting opinion pointed 
out that:

“ In respect of civil rights, common to all citi­
zens, the Constitution of the United States does 
not, I think, permit any public authority to know 
the race of those entitled to be protected in the 
enjoyment of such rights Every true man has 
pride of race, and under appropriate circum­

15 Plessy v. Ferguson, supra, at page 543.
16163 U. S. 537, 545.



31

stances, when the rights of others, his equals be­
fore the law, are not to be affected, it is his privi­
lege to express such pride and to take such action 
based upon it as to him seems proper. But I deny 
that any legislative body or judicial tribunal may 
have regard to the race of citizens when the civil 
rights of those citizens are involved. Indeed such 
legislation as that here in question is inconsistent, 
not only with that equality of rights which per­
tains to citizenship, national and state, but with 
the personal liberty enjoyed by every one within 
the United States.”

and
“ There is no caste here. Our Constitution is 
color-blind, and neither knows nor tolerates classes 
among citizens. In respect of civil rights, all citi­
zens are equal before the law. The humblest is 
the peer of the most powerful. The law regards 
man as man, and takes no account of his surround­
ings or of his color when his civil rights as guar­
anteed by the supreme law of the land are involved. 
It is therefore to be regretted that this high tri­
bunal, the final expositor of the fundamental law 
of the land, has reached the conclusion that it is 
competent for a state to regulate the enjoyment 
by citizens of their civil rights solely upon the 
basis of race.”

More recent decisions of the Supreme Court support 
Mr. Justice Harlan’s conclusion.17 In re-affirming the 
invalidity of racial classification by governmental agen­
cies, Chief Justice Stone speaking for the Court stated: 
“ Distinctions between citizens solely because of their 
ancestry are by their very nature odious to a free people 
whose institutions are founded upon the doctrine of 
equality. For that reason legislative classification or

17 Hirabayashi v. United States, 320 U. S. 81, 100 (1943).



32

discrimination based on race alone has often been held 
to be a denial of equal protection.” 18

In the same case, Mr. Justice M u r p h y  filed a concur­
ring opinion in which he pointed out that racial distinc­
tions based on color and ancestry “ are utterly inconsistent 
with our traditions and ideals. They are at variance 
with the principles for which we are now waging war.”  19

Mr. Justice M u r p h y  in a concurring opinion in a case 
involving discrimination against Negro workers by a 
railroad brotherhood acting under a federal statute 
(Railway Labor Act) pointed out:

“ Suffice it to say, however, that this constitu­
tional issue cannot be lightly dismissed. The cloak 
of racism surrounding the actions of the Brother­
hood in refusing membership to Negroes and in 
entering into and enforcing agreements discrim­
inating against them, all under the guise of Con­
gressional authority, still remains. No statutory 
interpretation can erase this ugly example of 
economic cruelty against colored citizens of the 
United States. Nothing can destroy the fact that 
the accident of birth has been used as the basis 
to abuse individual rights by an organization pur­
porting to act in conformity with its Congressional 
mandate. Any attempt to interpret the Act must 
take that fact into account and must realize that 
the constitutionality of the statute in this respect 
depends upon the answer given.

‘ ‘ The Constitution voices its disapproval when­
ever economic discrimination is applied under 
authority of law against any race, creed or color. 
A  sound democracy cannot allow such discrimina­
tion to go unchallenged. Racism is far too virulent

18 Hirabayashi v. United States, supra.
19 Ibid, at page 110.



33

today to permit the slightest refusal, in the light 
of a Constitution that abhors it, to expose and 
condemn it wherever it appears in the course of 
a statutory interpretation. ’ ’ 20

The doctrine of “ separate but equal”  treatment rec­
ognized in Plessy v. Ferguson was arrived at not by any 
study or analysis of facts but rather as a result of an 
ad hominem conclusion of “ equality”  by state courts. 
As a matter of fact, the United States Supreme Court 
has never passed directly upon the question of the valid­
ity or invalidity of state statutes requiring the segrega­
tion of the races in public schools. The first case on 
this point in the United States Supreme Court is the 
case of Cummings v. Richmond County Board of Edu­
cation.21 The Board of Education of Richmond County, 
Georgia, had discontinued the only Negro high school 
but continued to maintain a high school for white pupils. 
Petitioner sought an injunction to restrain the Board 
from using county funds for the maintenance of the 
white high school. The Trial Court granted an injunc­
tion which was reversed by the Georgia Supreme Court 
and affirmed by the United States Supreme Court. The 
opinion written by Mr. Justice Hablan expressly ex­
cludes from the issues involved any question as to the 
validity of separate schools. The opinion pointed out:

“ It was said at the argument that the vice in 
the common-school system of Georgia was the re­
quirement that the white and colored children of 
the state be educated in separate schools. But 
we need not consider that question in this case. 
No such issue was made in the pleadings.”

20Steele v. L. N. R. R. Co., 323 U. S. 192 at page 209 (1944).
21175 U. S'. 528 (1890).



34

In the case Gong Lum v. Rice,22 the question was 
raised that the right of a state to classify Chinese as 
colored to force them to attend schools set aside for 
Negroes. In that case the Court assumed that the ques­
tion of the right to segregate the races in its educational 
system had been decided in favor of the states by previous 
Supreme Court decisions.

The third school case is Missouri ex rel. Gaines v. 
Canada 23 This was a petition for a writ of mandamus 
to compel the officials of the University to admit a Negro 
to the University’s law school. The state court con­
strued the state’s separate school laws as requiring sep­
aration in schools of higher education. Although the 
state university for Negroes had no law school, the state 
court construed applicable state laws as requiring the 
establishment of a Negro law school “ whenever neces­
sary or practical’ ’ and pending the establishment of such 
a school to provide out-of-state aid to qualified Negro 
applicants. This, according to the state court, met the 
requirements of the Fourteenth Amendment.

On certiorari to the United States Supreme Court, it 
was held that offering an opportunity for legal education 
outside the state pending possible establishment of a 
Negro law school in futuro within the State, did not con­
stitute equal educational opportunities. The narrow issue 
recognized by the Court was whether the state court’s 
denial of the writ, deprived the petitioner of the equal 
protection of the laws. In reversing the state court, Mr. 
Chief Justice Hughes for the majority said: “ The peti­
tioner is entitled to be admitted to the law school of the 
State University in the absence of other and proper

22 275 U. S. 78 (1927).
23 305 U. S. 337 (1938).



35

provision for his legal training within the state.”  The 
issue as framed by the Court made unnecessary to its 
decision any holding as to what the decision might be if 
the state had claimed to be offering petitioner oppor­
tunity for legal education in a Negro law school then in 
existence in the state. Obviously that issue was not 
before the Court.24

Segregation in public education helps to preserve and 
enforce a caste system which is based upon race and 
color. It is designed and intended to perpetuate the slave 
tradition sought to be destroyed by the Civil War and to 
prevent Negroes from attaining the equality guaranteed 
by the federal Constitution. Racial separation is the aim 
and motive of paramount importance—an end in itself. 
Equality, even if the term be limited to a comparison of 
physical facilities, is and can never be achieved.

The only premise on which racial separation can be 
based is that the inferiority and the undesirability of the 
race set apart make its segregation mandatory in the 
interest of the well-being of society as a whole. Hence 
the very act of segregation is a rejection of our constitu­
tional axiom of racial equality.

The Supreme Court in Plessy v. Ferguson, as we have 
seen, without any facts before it upon which to make a

24 It is true that despite the fact that the Court’s position on the 
validity of a separate law school for Negroes was not necessary to 
its decision, the Court by way of dictum made the following obser­
vation after referring to the state’s obligation to provide substan­
tially equal advantages for higher education to Negroes and white 
students:

“ The state has sought to fulfill that obligation by furnishing 
equal facilities in separate schools, a method the validity of 
which has been sustained by our decisions.”



36

valid judgment adopted the “ separate but equal”  doc­
trine. Subsequent cases have accepted this doctrine as 
a constitutional axiom without examination. Hence what 
was in reality a legal expedient of the Eeconstruction 
era has until now been accepted as a valid and proved 
constitutional theory. The record in this case clearly 
demonstrates the fallacious and untenable rationale on 
which the doctrine is founded and the necessity for its 
repudiation.

Equality without regard to race, color or creed is the 
very essence of our way of life. The constitution guaran­
tees it; our moral and ethical codes demand it. Since 
segregation and equality are mutually exclusive this 
Court must find that appellant’s rights under the federal 
Constitution can only be satisfied by his acceptance and 
enrollment in the University of Texas School of Law on 
the same basis with other students.

Ill

The demonstration in this record that racially 
separate schools in fact and inevitably deny 
the equality required by the Fourteenth 
Amendment, precludes the application of any 
“separate but equal” doctrine in the field of 
public education and in the circumstances of 
this case.

A. The law school set up by appellees does 
not meet the requirements of the Four­
teenth Amendment.

The appellees admit that the equal protection clause 
of the Fourteenth Amendment to the Federal Constitu­
tion requires them to provide this appellant with the 
opportunity to secure a legal education in Texas. They,



37

however, contend that this requirement is met by pro­
viding appellant with a separate law school “ substan­
tially”  equal to that at the University of Texas where 
appellees have provided white citizens of Texas with 
an opportunity to acquire the best legal education offered 
in the State.

In what appears to be an attempt to comply with the 
constitutional requirements of the Fourteenth Amend­
ment, appellees set up for this appellant a law school 
which they contend and attempted to prove, on the trial 
of this case, is a law school substantially equal to that 
at the University of Texas. But the whole testimony, and 
especially that introduced by the appellees themselves, 
shows conclusively that this so-called law school is not 
substantially equal to that at the University of Texas 
in a single respect.

As a matter of fact, the testimony in this case for 
the first time presents in bold relief the inevitable dis­
crimination inherent in a segregated school pattern.

The Statement of Facts shows that the University of 
Texas Law School is a full-time, approved law school 
(S. F. 11, 31).25 * * It has a student body of some eight 
hundred (800) students (S. F. 351) a faculty of some 
twenty-four (24) or more full-time professors;28 a cur­
riculum offering forty-seven (47) law courses designed to 
prepare students to become practitioners, law teachers,

25 The American Bar Association and The Association of Amer­
ican Law Schools are the two recognized agencies which set mini­
mum standards to which every law school must conform in order 
to receive approval and consequent recognition as a law school.
The University of Texas Law School is approved by both of these
associations.

28 See University of Texas Publication No. 4529, August 1, 
1945, School of Law.



public servants, and legal researchers;27 a library of more 
than sixty-five thousand (65,000) volumes (S. F. 7 1 );28 
a budget of several million dollars (S. F. 398-416); a 
large, well-equipped building with several classrooms and 
beautiful grounds (S. F. 74); a well-established, recog­
nized law review; 29 30 several moot courts and other student 
extracurricular activities; 80 prestige which comes from 
being attached to the State’s largest and best Univer­
sity with a national and international reputation and 
sixty-four (64) years of tradition.31

The “ law school”  which appellees have hastily pro­
jected for Negroes is, on the other hand, part-time and 
unapproved (S. F. 75).32 It has no student body (S. F. 
22); a faculty of part-time professors (S. F. 51, 56, 68) ; 33 
a part-time Dean (S. F. 57) 34 no librarian (S. F. 231- 
232); a curriculum offering only first-year law courses 
designed to give nothing more than the bare principles 
of the subject involved (S. F. 3 9 );35 a library of only

27 Ibid.
28 The American Bar Association requires that a law school 

have at least 7,500 well-selected books to meet the minimum 
standards of approval and the American Association of Law 
Schools requires 10,000.

29 Note 26, supra.
30 Note 26, supra.
81 The law school at the University of Texas was begun in 1883.
32 See the report to the 36th Annual Meeting of the Associa­

tion of American Law Schools on Consolidation of Legal Educa­
tion in Dallas, 9 Am. Law School Review 233 (1938) ; Storey, 
Progress of Legal Education, Texas Bar Journal, Vol. 1, No. 5 
(1938).

33 The Association of American Law Schools requires a mini­
mum of four full-time professors irrespective of the number of 
students (Statement of Facts 35).

34 See Horack, Law Schools of Today and Tomorrow, 6 Am. 
Law School Review 658 (1927) for an excellent commentary on 
the part-time Dean.

85 See Boyer, Smaller Law Schools: Factors Affecting Their 
Methods and Objectives, 20 Oregon Law Rev. 281 (1941)^



39

two-hundred (200) volumes (8. F. 13, 50, 7 7 );36 37 a bud­
get of only One Hundred Thousand Dollars ($100,000);87 
three or four small rooms, leased on the ground floor 
of an old office building, without any items of pulchritude 
(S. F. 13, 38, 71, 74, 8 0 );38 no law review;39 no moot 
court or other student activity of any description;40 
cultural atmosphere which comes from being attached 
to a large, well-known University is completely lacking 
in every respect (S. F. 444) ;41 and of course this anoma­
lous creation of appellees can have no tradition.42

86 Note 28, supra.
37 Note 35, supra.
38 See the address of John C. Townes, former Dean of the Uni­

versity of Texas Law School before the 10th Annual Meeting of 
the Association of American Law Schools, 2 Am. Law School 
Review 436 (1910), for an excellent discussion entitled, Organi­
zation and Operation of a Law School.

89 Note 35, supra.
40 Note 35, supra.
41 Both the American Bar Association and the Association of 

American Law Schools advocate the abolishment of proprietary 
schools, i. e., schools which are not a part of a university. See 
Ballantine, H. W ., The Place in Legal Education of Evening and 
Correspondence Law Schools, 4 Am. Law School Rev. 369 (1918), 
where he says: “ The evening law schools unfortunately do not 
have the cultural atmosphere which surrounds university life. By 
the university law schools system of legal education, the law school 
is conducted by and associated with a public educational institu­
tion which is not run for profit. It is an organic part of the 
university and has the benefit of university standards, spirit, sup­
port and facilities. The .student is required to be in constant resi­
dence at the school, which maintains classrooms and offices for 
the professors and a library for study. This library is the school 
laboratory. The faculty of the school devote their lives to teach­
ing, study, consultation and research. These schools aim to exact 
from their students practically their entire time and their exclusive 
devotion to the study of law. They have traditions, atmosphere, 
inspiration.  ̂ They publish law reviews and quarterlies and are an 
important liberalizing and progressive influence, centers of legal 
research and productivity.”

42 Note 41, supra.



40

In the face of these facts, which were brought to light 
on the trial of this case, appellees insist that this law 
school which they have provided for appellant satisfies 
the requirement of the Fourteenth Amendment. The 
ease as presented and relied on by appellees shows the 
patent inequities inherent in a pattern of segregation. 
This, in itself, demonstrates the inevitable result of fal­
lacious reasoning brought about by the use of a hypo­
thesis that “ separate but equal”  facilities can ever exist 
when as a matter of fact there can be no equality in a 
segregated system. Segregation and discrimination are 
so interrelated as to make it impossible to distinguish 
one from the other.

B. The law school set up by appellees cannot 
meet the requirements of the Fourteenth 
Amendment.

The contention of appellant is, on the other hand, 
that the Fourteenth Amendment requires that appellees 
make available to him the opportunity to receive the 
identical legal training which other Texans receive. The 
appellant further contends that the only way this can 
be done is by allowing him to attend the same law school 
which other Texans attend and that requiring him to 
attend a separate law school would not afford him the 
same education even though the physical facilities be 
substantially equal.

Assuming that appellees had set up a separate law 
school equal in every physical respect to that at the Uni­
versity of Texas, the requirements of the Fourteenth 
Amendment would still not be met because: (1) the ap-



41.

pellant would not receive the same education, and (2) 
the equality of the two schools is not determined by the 
physical identity of their facilities but by the similarity 
of their value in the eyes of the community.

The testimony in this case showed that in order for 
appellant to receive the same education which the 
students at the University of Texas receive, it would be 
necessary for appellees to make available to him the 
same facilities in a similar setting. It is conceded that 
it would be possible for appellees to provide substan­
tially equal physical facilities, but it is not possible to 
provide a similar setting because the student body is 
composed of one student and not a cross-section of the 
community population. If this school set up by appel­
lees for this appellant had several students, all Negro, 
it still would not be equal to that at the University of 
Texas because it would not be as representative a 
student body as that of the University of Texas. The 
testimony shows that if appellant were allowed to attend 
the University of Texas, he would have the educational 
advantage of give and take among eight hundred (800) 
schoolmates, whereas if he is required to attend this seg­
regated law school, he will have no associates. The tes­
timony of the expert witnesses was that associates are 
as essential to a law school as any other facility and that 
the advantages of being in a classroom with many stu­
dents holding diverse views on the questions of law pre­
sented are obvious to the most casual observer (S. E.



42

349-379, 560-591).43 In short, there would be no way of 
duplicating the associations which appellant would have 
at the University of Texas.

The testimony in this case further shows that assum­
ing equal facilities, appellant would not receive the same 
education because the school is unapproved, completely 
lacking in student activity and has no traditions or cul­
tural background (S. F. 349-379, 560-561). These very 
essential attributes of the University of Texas law school 
appellees cannot duplicate either.44

Appellant does not seek to have appellees establish 
a separate school for Negroes with facilities equal to 
those at the University of Texas because appellant con­
tends, as indicated infra, that “ equality is determined 
not by the physical identity of things or facilities fur­
nished, but by the identity or substantial similarity of 
their values—in short, by the community judgment at­
tached to them.”  There can be no question that a seg­
regated law school for Negroes has a very low value in

43 See: Ballantine, The Place in Legal Education of Evening 
and Correspondence Law Schools, 4 Am. Law School Rev. 369 
(1918) ; Boyer, The Smaller Law Schools, 20 Oregon Law Rev. 
281 (1941) ; Proceeding of the 36th Annual Meeting of the Asso­
ciation of American Law Schools, 9 Am. Law School Review 233 
(1938) ; Clark, Contrast: The Full-Time Approved Law School 
Compared With The Unapproved Evening School, 20 ABA 
Journal 548 (1934) ; Horack, Law Schools of Today and Tomor­
row, 6 Am. Law School Rev. 658 (1927) ; Maxwell, Chairmans 
Address, 1 Am. Law School Rev. 337; Snyder, The Function of 
the Night Law School, 7 Am. Law School Rev. 827 (1933); 
Address of Harlan F. Stone, 4 Am. Law School Rev. 483 (1919); 
Brown, Lawyers and the Promotion of Justice (1938) ; Vance 
The Function of the State-Supported Law School, 3 Am. Law 
School Rev. 409 (1914) ; Reed, A. Z., Present-Day Lazo Schools 
(1928) ; Reed, A. Z., Social Desirability of Evening or Part-Time 
Law Schools, 7 Am. Law School Rev. 198 (1931).

44 Note 43, supra.



43

the eyes of every community since the purpose is to 
segregate a group which Texans have been led to be­
lieve is inferior.45 If this were not true, then the “ jim- 
crow”  school would never have appeared. Since there 
is not even a scintilla of merit to the contention that 
Negroes are inferior and should be segregated, appel­
lees should be prevented from excluding appellant solely 
on account of his race and color. If they did set up a 
school for him with facilities which appear, to be equal 
in terms of monetary value, it would not be equal in the 
mind of the community. Therefore, since the value of 
any institution is undeniedly determined by the com­
munity judgment of it, the appellees should be prevented 
from excluding appellant from their school and relegat­
ing him to a school which could not possibly be equal 
because of its low value in the eyes of the community.

C. The function of a state-supported law 
school.

The function of a state-supported law school is to 
serve the interests of the people of the state as a whole 
and not merely lawyers as a class nor those who seek 
to perpetuate bigotry and outmoded notions of racial 
superiority. The interests of the people of a state are 
most effectively served by providing through the state- 
supported law school the best type of legal education 
that experts in the field have been able to recommend, as 
the welfare of society requires, not only that the public 
be free from incompetent counsel, but that the laws be

45 It is common knowledge that Negroes in the South have 
been relegated to a position of inferiority in every area of public 
life and that such a position is natural is a view which is widely 
held.



44

wisely and justly made and fairly and honestly admin­
istered. Certainly the people of a state would not allow 
their young physicians, whose job it will be to safeguard 
the lives and health of the people, to be trained in schools 
teaching antiquated methods and using outdated equip­
ment when medical experts have devised more advanced 
methods and more scientific equipment. Since law stu­
dents are the ones to whom will be entrusted the admin­
istration of justice, it is at least equally important to the 
welfare and safety of all the people that these persons 
receive the best possible training available.46 Thus, all 
resources the state can afford should be directed to this 
end and not dissipated in an attempt to maintain un­
democratic practices of racial segregation.

The modern law school today has at least four objec­
tives: (1) to prepare for law teaching, (2) to prepare for 
legal research, (3) to prepare for practice, (4) to pre­
pare for public service.47

In order to achieve these objectives, an adequate law 
school necessarily has the facilities for so doing. First 
and foremost financial resources are at their disposal. 
These resources are needed to obtain a large, well- 
trained faculty. The faculty must be large in order that 
each individual instructor carry as light a teaching load 
as possible. Even the best professors must devote their 
full time to their teaching. In order to do this, their 
income must be adequate.48

46 See Vance, The Function of the State-Supported Law School, 
3 Am. Law School Rev. 409 (1914) ; McCormick, C. T., The 
Place and Future of the State University Law School, 24 N. C. 
Law Rev. 441.

47 Boyer, The Smaller Law Schools: Factors Affecting Their 
Methods and Objectives, 20 Oregon Law Rev. 281 (1941) ; (S. F. 
349-379, 560-591).

48 Ibid.



45

A large, extensive, and well-organized library with 
several trained librarians is indispensable. Without 
such a library the student will be presented with a prac­
titioners ’ library, rather than one adapted to legal re­
search, and graduate work would be impossible.49

An adequate law school offers special compilations 
of material to its students and a great deal of integra­
tion of courses in order to allow a teacher to become spe­
cialized.50

The student body is composed of a cross-section of the 
population in order that the students may have the op­
portunity to come into contact with all the current think­
ing and familiarize themselves with the problems of their 
state.

In addition to the financial resources, the faculty, the 
library, the curriculum and the student body, the effec­
tiveness of the adequate law school is greatly enhanced 
by its extra-curricular activities such as, legal aid clinics, 
legal institutes, drafting service, briefing service, moot 
court and law review. These activities cannot be included 
in the organized effort of the modern law school without 
adequate faculty, the time required, the special knowl­
edge required and the requisite financial resources.51

A proper building, which is well constructed, with 
comfortable and healthful rooms and good acoustics, 
lounges, offices and grounds, is essential.52

Finally, tradition and cultural atmosphere are as in­
dispensable to a first-class law school today as any other

49 Ibid.
50 Ibid.
51 Ibid.
52 Footnote 38, supra.



46

condition and neither Mark Hopkins and a log nor a few 
rooms in a downtown office building will fulfill this re­
quirement.53

The difficulties encountered in attempting to make 
part-time schools the equivalent of full-time schools are 
so great that the most ardent partisan of the part-time 
school, Mr. Alfred Z. Reed, says that part-time schools 
should cease striving to duplicate the work of full-time 
schools and find a field of instruction to which they, and 
only they, can do justice.54

When the medical profession realized the danger to 
the community of small schools with inadequate facili­
ties, it set out to organize the field of medical education, 
to raise the standards and to drive out the schools which 
could not meet the requirements for first-rate medical 
education. Available statistics which indicate the sharp 
decline in the number of medical schools which could 
not meet certain requirements represent the result of 
pressure exerted by the American Medical Association, 
the Association of American Medical Colleges, state 
boards of examiners, the Carnegie Foundation for the 
Advancement of Teaching, and other groups. A similar 
fate awaits the small, inadequate law school.55

In 1936, the American Bar Association statistics 
showed that there were more unapproved law schools in 
Texas than any other state in the Union. Of the twelve 
law schools in Texas at that time, nine were unap­
proved.56

53 Footnote 41, supra.
54 Reed, A. Z., Social Desirability of Evening or Part-Time 

Law School, 7 Am. Law School Rev. 198 (1931).
55 Brown, Esther Lucile, Lawyers and the Promotion of Justice 

(1938).
56 Ibid.



47

This deplorable situation led to a movement in Texas 
to consolidate legal education. The aid of the Associa­
tion of American Law Schools was sought in this effort. 
At the 36th Annual Meeting of the Association in 1938, 
a report was made of what had occurred in Dallas as a 
result of this effort. The report stated that early in 
1937 there was a series of conferences by representa­
tives of the YMCA, which was the largest of these part- 
time unapproved schools, Southern Methodist Univer­
sity Law School, the Dallas Bar Association, the Ameri­
can Bar Association, and the Association of American 
Law Schools. As a result of these conferences, an agree­
ment was drawn and acted upon which resulted in the 
retirement of the YMCA from the field of legal educa­
tion. The YMCA school was absorbed by Southern 
Methodist University. The Dallas Bar Association 
thereupon adopted regulations which were designed to 
eliminate small, part-time and non-accredited law schools. 
The report also indicated that similar consolidations 
were under way in other areas.57 Most of the part-time 
law schools were pushed out of the field after the repeal 
of the “ diploma privilege”  and the adoption of higher 
standards for admission to the bar by the Texas Su­
preme Court.58

R. G-. Storey of the Texas bar said of these higher 
standards:

“ In the effort of organized bar associations to 
elevate the standards for admission to the bar, 
it is not the desire to work a hardship upon any

57 See report of the 36th Annual Meeting of the Association 
of American Law Schools, 9 Am. Law School Review 233 (1938).

The “ diploma privilege” was the system whereby one hold­
ing a law school diploma was riot required to take the bar.



48

law school, and the American Bar Association will 
encourage and help any law school that will ele­
vate its standards and meet the requirements, but 
if a school cannot meet such requirements because 
of inadequate financial support or other reasons, 
its graduates cannot meet the rising standards of 
the profession. The standards of admission to 
the bar should be fixed in accordance with the 
public interest, rather than for the benefit of any 
law school or individual . . .  It is therefore the 
goal of organized bar associations to so elevate 
standards in all of the states that those who come 
into the profession will be better trained, both in 
general education and law study, than heretofore, 
which will naturally result in elevating the pro­
fession, as well as serving the public in a more 
efficient manner. . . . ” 59

By setting up a small, part-time, unapproved law 
school for this appellant, appellees are, in fact, lowering 
the standards of legal education in the State of Texas 
for all citizens and dissipating the resources of the state 
by attempting to maintain two inferior law schools rather 
than making the one which is now in existence serve the 
needs of the state on the highest possible levels.60

59 Storey, Progress in Legal Education, Texas Bar Journal, 
Vol. 1, No. 5 (1938).

60 See the address of Charles E. Dunbar before The Association 
of American Law Schools (1939), The A B A  Program in the Field 
of Legal Education and Admissions to the Bar and the Part-Time 
School Problem; President’s Address, 17th Annual Meeting Asso­
ciation of American Law Schools, 4 Am. Law School Rev. 483 
(1919) ; Chairman’s Address, A B A  Section on Legal Education, 
1 Am. Law School Rev. 337 (1905).



p

49

D. The expert testimony introduced at the 
trial establishes that there is no rational
justification for segregation in professional 
education and that substantial discrimina­
tion is a necessary consequence of any 
separation of professional students on the 
basis of color.

1. The professional skills developed through gradu­
ate training are among the most important elements of 
our society. Their importance is so great as to be almost 
self-evident. They are the end results, the products of 
education, but, at the same time, they do not constitute 
the full purpose of education. A definition of that pur­
pose, particularly in its relationship to segregation, has 
been furnished by an eminent authority, Dr. Robert Red- 
field of the University of Chicago. He states:

“  . . .  I should say that the main purposes of edu­
cation are to develop in all citizens in accordance 
with the natural capacities of those citizens, the 
fullest intellectual and moral qualities, and the 
most effective participation in the duties of the 
citizens”  (8. F. 312).

It clearly follows then, that segregation is an abortive 
factor in the full realization of the objectives of educa­
tion. First, it prevents both the Negro and white, student 
from obtaining a full knowledge and understanding of 
the group from which he is separated, thereby infringing 
upon the natural rights of an enlightened citizen (S. F. 
315). Second, a feeling of distrust for the minority group 
is fostered in the community at large, a psychological 
atmosphere which is not favorable to the acquisition and 
conduct of an education or for the discharge of the duties 
of a citizen (S. F. 315, 316). Lastly, one of the effects 
of segregation in education with respect to the general



50

community is that it accentuates imagined differences 
between Negroes and whites (S. F. 316). On this point, 
the verbatim text of Dr. Redfield’s testimony merits 
quotation:

“ .These false assumptions with respect to the ex­
istence of those differences are given an appear­
ance of reality by the formal act of physical sepa­
ration. Furthermore, as the segregation, in my 
experience, is against the will of the segregated, 
it produces a very favorable situation for the in­
crease of bad feeling, and even conflict, rather 
than the reverse”  (8. F. 316).

It is clear, then, that in seeking a form of education 
free from any racial restrictions, one wants not only the 
benefits and skills that that education can yield him, but, 
primarily, he desires to live and function as an enlight­
ened citizen in a representative democracy.

2. Qualified educators, social scientists, and other 
experts have expressed their realization of the fact that 
“ separate”  is irreconcilable with “ equality” .61 There 
can be no separate equality since the very fact of segre­
gation establishes a feeling of humiliation and depriva­
tion to the group considered to be inferior.62 The sociolog­
ical and political significance of the practice of segre­
gation is found not only in the deprivations experienced 
by the minority group, but by society at large. In one 
of the most exhaustive studies ever conducted on the sub-

61 Gunnar Myrdal, An American Dilemma, New York, 1944, 
Vol. I, page 580.

Charles S. Johnson, Patterns of Segregation, New York, 1943, 
page 4, 318.

Charles S. Mangum, Jr., The Legal Status of the Negro, 
Chapel Hill, 1940.

62 Carey McWilliams, “ Race Discrimination and the Law’ , 
Science and Society, Volume IX  Number 1, 1945.



51

ject of segregation, the noted sociologist Gfunnar Myrdal
has stated:

“ Segregation and discrimination have had ma­
terial and moral effects on whites, too. Booker T. 
Washington’s famous remark that the white man 
could not hold the Negro in the gutter without 
getting in there himself, has been corroborated by 
many white southern and northern observers. 
Throughout this book, we have been forced to 
notice the low economic, political, legal and moral 
standards of Southern whites—kept low because 
of discrimination against Negroes and because of 
obsession with the Negro problem. Even the am­
bition of Southern whites is stifled partly because, 
without rising far, it is so easy to remain ‘ super­
ior’ to the held-down Negroes.” 153

There are many other authoritative studies which bear 
out Mr. Myrdal’s observations.63 64

In addition to the psychological atmosphere of dis­
trust and the practical inequities which result under a 
segregated system, the citizens of both the majority and 
minority groups are deprived of that inter-change of 
ideas and attitudes which is so necessary to a full educa­
tion (S. F. 320, 325).

3. No one questions the kind of separation which the 
community imposes in the interest of public safety, con­
venience or welfare. There is ample justification for 
differences in the treatment of the old and the young, 
the healthy and the sick, the criminal and the law-abiding. 
In each of these cases the act of separation is justified

63 Gunnar Myrdal, An American Dilemma, New York, 1944, 
Vol. 1, page 644.

84 H. Cantril, Psychology of Social Movements, 1941, pages 
78-122;

Gene Weltfish, Causes of Group Antagonism, Journal of Social 
Issues, Vol. 1.



52

and is motivated by a desire to protect society at large, 
and to promote the interest of both groups.

There is, however, no rational basis, no factual justi­
fication for segregation in education on the grounds of 
race or color. This type of segregation is often rational­
ized on the ground that “ Negroes have an inferior mental 
capacity to whites.”  Yet this premise is completely in­
valid and no act of segregation based upon it can be up­
held as reasonable.65 Scientific studies have- been con­
ducted in which representative samples of both groups, 
Negro and white, have been placed in nearly identical 
situations with identical tasks to perform. The per­
formances of these tasks have indicated the intellectual 
faculties and the capacity to learn of the people being 
tested (S. F. 313, 314). The results of such tests as in­
dicated by the testimony in this case read as follows:

“ The conclusion then, is that differences in in­
tellectual capacity or inability to learn have not 
been shown to exist as between Negroes and whites, 
and further, that the results make it very probable 
that if such differences are later shown to exist, 
they will not prove to be significant for any edu­
cational policy or practice”  (S. F. p. 314).

Moreover, it has been demonstrated, that in cases 
where no segregation exists, or where it has ceased to 
exist, the results have never been disastrous but often

65 The Black and, White of Rejections for Military Service, 
American Teachers Association, August, 1944, page 29.

Otto Klineberg, Negro Intelligence and Selective Migration, 
New York, 1935.

J. Peterson & L. H. Lanier, “ Studies in the Comparative 
Abilities of Whites and Negroes” , Mental Measurement Mono­
graph, 1929..

W . W . Clark, “ Los Angeles Negro Children” , Educational 
Research Bulletin, Los Angeles, 1923.



53

favorable (S. F. 317, 318, 454). In the course of the 
instant trial, one of the expert witnesses, on being ques­
tioned as to the effect of Negro and white students study­
ing together at the University of Chicago, testified:

“ Q. Were there any ill effects at all? A. I 
don’t know of any.

“ Q. Do you know of any good effects? A. 
Yes. Perhaps I should mention a case. The 
students were denied admission, Negro students 
were discouraged from admittance is perhaps a 
more accurate statement, to the laboratory school 
of the University.

“ They were discouraged admission for a great 
many years. Then it was made apparent that they 
would be welcome, and they began to come, and 
there was opposition for a minority of the aca­
demic community to the step. Many evil conse­
quences were told. None of those consequences 
took place, but, on the other hand, there was an 
improvement in the community in that there was a 
representation of the national community which is 
favorable to education, and the relations between 
the white and the Negro groups were improved 
in parent-teacher and endeavor”  (S. F. 317, 318).

Since all available evidence controverts the theory 
that Negroes have an inferior mental capacity to whites, 
and moreover, since the two groups work well together 
and to their mutual advantage, it must be concluded that 
any claim of inferiority is motivated by a desire to per­
petuate segregation per se.66 68

68 McGovney, Racial Residential Segregation by State Coiirt 
Enforcement of Restrictive Agreement, Covenants or Conditions 
in Deed is Unconstitutional (1945), 33 Cal. L. Rev. 5, 27 (note 
94: “When a dominant race, whether white or Negro, demands 
Separation, it is fallacious to say . . . that the intention and effect 
is not to impose a ‘badge of inferiority’ on the other.” )



54

4. It may be that the pattern of segregation which 
has existed in the South for more than fifty years cannot 
be abolished instantaneously. But although the term 
“ gradual”  may be used adjectively in relation to the 
overall pattern, it should not be used as a rationalization 
for inaction at any given instance. Testimony in this 
case has been submitted by an expert witness for the ap­
pellants to the effect that:

‘ ‘ I think that all change should not come on any 
more rapidly than it is consistent with the gen­
eral welfare”  (S. F. 321).

However, when questioned as to whether it isn’t im­
possible to abolish segregation in a community where it 
has existed for a long number of years (S. F. 321), the 
witness for the appellant testified:

“ A. No I don’t agree to that.
“ Q. Do you think the laws should be changed 

tomorrow ? A. I think that segregation is a matter 
of legal regulation. Such a law can be changed 
quickly . . . Segregation in itself is a matter 
of law, and that law can be changed at once, but 
if you mean the attitude of the people with re­
spect to keeping away from people of another race, 
then perhaps I have another answer”  (S. F. 321- 
322).
* * * * # * # # #
“ I think in every community there is some seg­
regation that can be changed at once, and the area 
of higher education is the most favorable for mak­
ing that change”  (S. F. 322).

The appellants in this case are fully cognizant of the 
fact that the pattern of segregation has become deeply 
entrenched in the general mores in the South. Yet the



55

basis for a new and forward looking approach exists in 
the record before this Court (S. F. 306-316, 380-476).

New rulings made on the basis of a record which 
shows a pattern of inequality and injustice under our 
Constitution, are not revolutionary but evolutionary.

5. The correlation between segregation and discrim­
ination in education is demonstrated by the evidence in 
this record dealing with the educational system of the 
State of Texas. It is no accident, no coincidence, that 
wherever segregation is decreed and enforced, there you 
will find inequality. A large section of the testimony in­
troduced before the Trial Court proves emphatically that 
in this state, where the Negro and the white schools are 
separated, the Negro schools are inferior and inadequate 
in every significant respect.

Dr. Charles H. Thompson, an authority in education 
whose unexcelled qualifications as an expert witness are 
amply set forth in the record (S. F. 380-387) made a 
documented, scientific study of the comparative educa­
tional facilities for Negroes and whites in Texas at the 
request of this appellant (S. F. 388). Analyzing the 
situation on the basis of the best recognized criteria. 
Dr. Thompson found, in substance:

(a) Physical Facilities.

The combined asset value of the plant facilities of the 
thirteen white state-supported schools above high school 
level is in excess of $72,000,000; that of Prairie View, 
the only Negro school of “ higher learning” , is slightly 
more than $4,000,000 (S. F. 401). This is less than half 
of the proportionate amount which would be allocated on 
the basis of the Negro population of the state. On a per



56

capita basis, $12.88 was invested in plant assets for every 
white person in Texas, $4.71 for every Negro (S. F. 402). 
The per student appropriation at Prairie View is much 
less than that found to exist at small white teachers 
colleges (S. F. 414-415). Texas provided through state- 
supported institutions for 66.8% of its white college 
students, only 31.8% of her Negro students in Senior 
colleges (S. F. 418).

(b) Current Expenditures.

In 1943-44, Texas appropriated $11,071,490 in State, 
County and District funds for higher education in Texas. 
They appropriated $10,858,018 to white institutions—i. <.. 
$1.98 per capita to every white citizen. They appropriated 
$113,472, or $.23 per capita, to every Negro in the popu­
lation (S. F. 410). The white institutions, then, got 8.06 
times as much as did the Negro institutions.

(c) Curriculum.

In Texas there are 106 under-graduate fields of 
specialization in the white state-supported institutions, 
and 49 in the Negro institution, Prairie View (S. F. 424). 
Texas A. & M., a white state-supported institution, offers 
■at5 fields of specialization as compared with 13 offered by 
Prairie View, a ratio of more than 3 to 1. On the other 
hand, a number of sub-collegiate high school trade courses 
are given at the Negro university, Prairie View, such as 
mattress making, auto mechanics, carpenting, laundering 
and dry cleaning, etc. (S. F. 425). These skills are usu­
ally taught in high schools or lower vocational schools 
(8. F. 425). On the graduate level, the investigation 
reveals that a total of 159 Negroes received graduate 
degrees during approximately a five-year period, as con-



57

trasted with' some 3,000 white students who received 
graduate degrees in the same period (8. F. 427). More­
over, the range of subjects in white graduate schools is 
considerably wider:

“ The National Survey of Higher Education for 
Negroes . . . , a U. S. Office publication, indicated 
in 1942 that the Texas state-supported higher in­
stitutions for whites offered graduate work in 65 
fields, and 5 for Negroes”  (8. F. 428).

The University of Texas, at the present time, gives 10 
different types of graduate degrees in 40 fields. Prairie 
View gives a Master’s Degree in 13 fields (8. F. 428).

(d) Faculty.

In comparing the faculty of white and Negro schools 
of higher learning, in Texas, two key factors must be con­
sidered, namely, salary and training (S. F. 434). In 
order to attract and retain a good teaching staff, faculty 
members must be paid good salaries and find the work­
ing conditions satisfactory. Dr. Thompson’s study dis­
closed that twenty-five well-prepared and able teachers 
were lost to other institutions within the past five years 
because of the inability of Prairie View to match their 
salary offers (S. F. 436). It further revealed that the 
median salary of a full professor in Prairie View is 
$2,025.00, while the lowest salary paid to a full professor 
in a state-supported white college is $2,700 (8. F. 436).

As to training, the picture is identical. In 1945-46, 
only 9.3% of the faculty members of Prairie View had 
degrees of the doctorate level (S. F. 438).



58

(e) Library.

The University of Texas library has 750,974 titles. 
Prairie View has 25,000. Even a white college with a 
smaller student body (1,205 students), such as East State 
Teachers College, had 81,974 volumes in 1945-46; Prairie 
View had 25,000 volumes for 1,619 students (S. F. 439). 
The library of one Negro college was found by an im­
partial survey committee to be inadequate even for under­
graduates, not to speak of its complete inability to meet 
the needs of its graduate students (S. P. 441).

(f) Standing in the Educational World and Com­
munity.

• Prairie View is not accredited by The Association of 
American Universities or by any of the national profes­
sional councils (S. P. 442). It is regarded as a “ poor 
college” ; it is not a “ real university”  (S. P. 444).

A  Negro student there cannot get the type of under­
graduate or graduate education that is available to the 
white student (S. P. 443-444).

The same conditions which exist in the undergraduate 
field are emphasized and brought into sharper relief in 
the graduate sphere. In the five-year period from 1939 
to 1943 only 159 Negroes received graduate degrees as 
compared with more than 3000 white students during the 
same period (S. P. 427). The University of Texas and 
A. & M. College of Texas, between the period of 1940 
and 1945 gave 212 doctorates. Now, if a Negro wishes 
to obtain a Doctor’s Degree in the State of Texas, the 
only recourse he has in so doing is through what is ad­
mittedly an inadequate scholarship fund (S. P. 429).



59

It might also be well to note, at this point, the state­
ment of one of appellee’s own expert witnesses, who, 
upon direct examination stated:

“ I am unable to think for the moment of colored 
institutions and white institutions which do have 
equal facilities with which I have been associated”  
(S. F. 547).

6. The inferiority of professional and higher edu­
cation available to Negroes in Texas makes itself di­
rectly felt in the woeful lack of qualified professional 
men in the Negro community of Texas.

In the year 1940, there was, in the State of Texas, 
one white doctor to every 903 of the white population, 
and one Negro doctor to every 5,637 of the Negro popu­
lation. Thus there were more than six times as many 
doctors in proportion to the white population as there 
were Negro doctors in proportion to the Negro popu­
lation (S. F. 420, 421). The dearth of Negro pro­
fessionals in the South does-not stem from any lack of 
desire for professional education on the part of these 
citizens, but is the direct result of the artificial limita­
tions placed on their educational opportunities. Thus, 
in Tennessee, where a minimum of opportunity was af­
forded by the Meharry Medical School, there are almost 
three times as many Negro doctors as there are in Texas.

A parallel situation exists in the case of dentists. In 
1940 there was in the State of Texas one white dentist to 
every 2,886 of the white population, and one Negro den­
tist for every 11,412 of the Negro population (S. F. 421). 
When we compare the ratio in the State of Tennessee, 
where Meharry Dental School admits Negroes, there are 
twice as many Negro dentists as there are Negro dentists



60

in Texas'. And in the District of Columbia, where How­
ard University admits Negroes to.the dental school, there 
are four times as many dentists as there are in Texas 
(S. F. 422).

Statistics in reference to the number of Negro engi­
neers bear out this same pattern.

But in the case of lawyers, we have the most graphic 
illustration of what the denial of professional education 
to Negro citizens can mean. In 1940, in the State of 
Texas, the ratio of white lawyers to the white population 
was one to every 712, whereas the ratio of Negro lawyers 
to the Negro population was one to 40,191 (S. F. 423).

7. The conditions summarized authoritatively by Dr. 
Thompson and other witnesses at the trial are by no 
means peculiar to Texas. They exist in Louisiana, in 
Alabama, in Mississippi, the whole South. They exist 
wherever and whenever there is enforced “ legal”  segre­
gation.

That this critical situation is not peculiar to Texas 
alone but is an inevitable result of the policy of racial 
segregation and discrimination in education is demon­
strated by an analysis made by Dr. Thompson.67 He 
states that:

“ In 1940 there were 160,845 white and 3,524 Negro 
physicians and surgeons in the United States. In 
proportion to population these represented one

67 Charles H. Thompson, “ Some Critical Aspects of the Prob­
lem of the Higher and Professional Education for Negroes,’ 
Journal of Negro Education (Fall, 1945).



61

physician to the following number of the tChite and 
Negro population, respectively:

Section White Negro
U. S____-______________  735 3,651*
North _____________ ___  695 1,800*
South _____________ ____ 859 5,300*
W est___:___________ _______ 717 2,000*
Mississippi ________ ___  4,294 20,000*
“ Law—in 1940 there were 176,475 white and 1,052
Negro lawyers in the U. S. distributed in propor-
tion to population as follows:

Section White Negro
U. S________________ 670 12,230*
North _____________ ___  649 4,000*
South __ _________ _______ 711 30,000*
W est______________ 699 4,000*
Miss.______________ ____ 4,234 358,000*

“ There are 18 times as many white lawyers as 
Negro lawyers in the country as a whole; 45 times 
as many in the South;' and 90 times as many in 
Mississippi. Even in the North and West there 
are six times as many white lawyers as Negro. 
With the exception of engineering, the greatest 
disparity is found in law.”

The record of this policy of educational segregation 
and denial of professional education to Negroes is clear. 
In the 17 08 states and the District of Columbia in 1939- 
1940 the following number of states made provisions for

* To the nearest hundred.
The seventeen states which require segregation in the school 

system are: Alabama, Arkansas, Florida, Delaware, Georgia, 
South Carolina, North Carolina, Texas, Tennessee, Missouri, Mis­
sissippi, Maryland, Virginia, West Virginia, Oklahoma, Louisiana, 
Kentucky and the District of Columbia.



6 2

the public professional education of Negro and white 
students: 69

Profession White Negro
Medicine __________ ______  15 0
Dentistry__________ ______  4 0
Law______________________  16 1
Engineering _______ 17 0
Social Service _____ ______  9 0
Library Science____ ______  13 1
Pharmacy _________ ______  14 0

The result has been that the qualified Negro student 
is unable to obtain the professional education for which 
he may be fitted by aptitude and training.

The implications of all this evidence are overwhelm­
ing. The facts are these: whenever and wherever seg­
regation in education is practiced under state sanction, 
there is admitted and flagrant discrimination in the treat­
ment of the Negroes. Discrimination and inequality fol­
low inevitably and inexorably from the mere fact of segre­
gation. The record not only of this case but of the educa­
tional experience of the nation demonstrates that where 
schools are separated on racial grounds, there must be 
inequality. “ Separate and equal”  is a legal fiction to 
which the states give only casual lip service. This record 
throughout and the experience of the teaching profession 
demonstrate that there is an inherent and fundamental 
contradiction between “ segregation”  and “ equality.” 
However valid in theory, it is apparent that in practice, 
in this case and in thousands of others, the Negro who 
honestly seeks learning cannot get it in a “ separate” 
school.

69 Based on data in National Survey of Higher Education for 
Negroes, Vol. II, page IS, 1942.



63

Conclusion

Appellant has conclusively proved that the right to 
equal protection guaranteed him under the Fourteenth 
Amendment can only be secured by his admission forth­
with to the University of Texas School of Law. It has

S

been clearly established herein both by appellant and by 
appellees that the “ equal but separate”  doctrine on 
which the constitutional and statutory requirements for 
segregated schools in Texas are based is an invalid hy­
pothesis. This record demonstrates that one cannot 
recognize the requirement of equal treatment as a valid 
principle and simultaneously defend the practice of 
racial segregation.

Fundamental to our American tradition is the belief 
in individual, racial and religious equality. This belief 
has been embodied in our constitutions, enacted into our 
statutes and carefully protected and preserved in our 
court decisions. Texas and other southern states have 
attempted to perpetuate a segregated system. They 
have rejected the fundamental premise of equality and 
in reality believe that Negroes hold and must necessarily 
retain a status inferior to whites. This rejection of a 
concept considered basic to our system is given legal 
status by a theory which purports to be founded upon 
the premise of equality. A choice must be made between 
these two conflicting concepts. Our Constitution and 
laws make clear that only one choice can be made.

Wherefore, it is respectfully submitted that this Court 
reverse the judgment of the Court below refusing appel­
lant’s application for writ of mandamus against appel-



64

lees requiring them to admit him to the University of 
Texas School of Law.

W. J. D u r h a m  of Dallas 
T h u rg o o d  M a r s h a l l  of New York 
Attorneys for Appellant.

By: ------------

J .  M. N a b r it  
0 ,  B .  B u n k l e y , J r .
H. M. B e l l in g e r  
R o b e r t  L. C a r t e r

Of Counsel.

The rule has been complied with and 
a copy of this brief has been delivered 
to the Honorable Price Daniels, At­
torney General of the State of Texas

By:







Supreme Court of the United States
October Term, 1948

IN' T H E

No.

HEMAN MARION SWEATT,

vs.
Petitioner,

THEOPHILIS SHICKEL PAINTER, ET AL.

APPENDIX TO PETITION AND BRIEF IN SUPPORT 
OF PETITION FOR WRIT OF CERTIORARI TO THE 

SUPREME COURT OF THE STATE OF TEXAS

W . J .  D u r h a m ,
W i l l i a m  H .  H a s t ie , 
W i l l i a m  R .  M in g , J r ., 
J a m e s  M . N a b r it , J r ., 
T h u rg o o d  M a r s h a l l ,

Attorneys for Petitioner.
R o bert  L. C a r t e r ,
E. B. B u n k l e y , J r .,
H a rry  B e l l in g e r ,
U . S. T a t e ,

Of Counsel.

A n n e t t e  H . P e y s e r ,
Research Consultant.





IN  T H E

Supreme Court o f the United States
October Term, 1948 

No...............

HEMAN MARION SWEATT,

vs.
Petitioner,

THEOPHILIS SHICKEL PAINTER, ET AL.

A p p e n d ix  to  P e t it io n  F o e  W r i t  o f  C e r t io r a r i 
T o T h e  S u p r e m e  C o u r t  o p t h e  S t a t e  o f  T e x a s

i



11

APPENDIX

The following data constitute a portion of a compre­
hensive and definitive study which demonstrates the type, 
quality, and quantity of the educational facilities available 
under the “ separate but equal”  formula.

The source material for this study is based upon publi­
cations of the United States Department of Education, 
publications of other government agencies and bodies, as 
well as articles which have appeared in accredited journals 
of education.

This portion of the study, which emphasizes the edu­
cational inequalities on the higher and professional levels, 
is filed to give this Court a true picture of “ separate but 
equal”  education.

In the seventeen southern states and the District of 
Columbia, separate schools are mandatory under law. Of 
the remaining thirty-one states, in all but a few segregated 
schools are not legal or are actually illegal.1

Approximately ten million or 77% of all Negroes in the 
United States live in the southern region, admittedly the 
most economically backward section of the country. This 
backwardness is overwhelmingly due to the maintenance of 
segregation and a caste system which relegates all Negroes 
to a position lower than the lowest white. The adamant 
stand which the South has taken against the training and 
utilization of 22.3% of its human resources, by depriving

1 Reddick, L.D. “ The Education of Negroes in States Where 
Separate Schools Are Not Legal,”  The Journal of Negro Education, 
Summer 1947, Vol. X V I, No. 3, p. 296. The seventeen states requir­
ing segregation are: Alabama, Arkansas, Delaware, Florida, Georgia, 
Kentucky, Louisiana, Maryland, Mississippi, Missouri, North Caro­
lina, Oklahoma, South Carolina, Tennessee, Texas, Virginia, West 
Virginia, and the District of Columbia.



,111

its Negro citizens of a fair and equal share of one of the 
basic democratic rights—the right to a good education— 
means that this right is denied to the very people it seeks 
to protect. As President Truman’s Commission on Higher 
Education has phrased it : 2 *

Segregation lessens the quality of education for 
the whites as well. To maintain two school systems 
side by side—duplicating even inadequately the 
buildings, equipment, and teaching personnel— 
means that neither can he of the quality that would 
he possible if all the available resources were devoted 
to one system, especially not when the States least 
able financially to support an adequate educational 
program for their youth are the very ones that are 
trying to carry a double load.

Thus every southerner suffers from lowered educational 
standards, Negroes most severely. Every southerner suf­
fers because the maintenance of this dual system demands 
that a large percentage of state tax-monies be diverted 
away from other fields where it is vitally needed and where 
it rightfully belongs. And subsequently the whole nation 
suffers because it is bereft of potential talent left unde­
veloped.8

Although educational inequities result from segregated 
education on every level, it is in the field of higher edu­
cation that the results are most easily viewed.

2 Higher Education for American Democracy, Report of the 
President s Commission on Higher Education, Government Printing 
Office, Washington, D. C., 1947, Vol. I, p. 34.

We believe that federal funds, supplied by taxpayers all over 
the nation, must not be used to support or perpetuate the pattern of 
segregation in education, public housing, public health services, or 
other public  ̂ services and facilities generally . . .  it believes that 
segregation is wrong morally and practically and must not receive 
financial support by the whole people.”  To Secure These Rights, 
recommendation V  o f the President’s Committee on Civil Rights, 
p. 166. 8



IV

H ig h e r  E d u c a t io n

The amount and the degree of opportunity, and the ex­
tent to which facilities for higher education are available, 
are probably the best indices to the educational environ­
ment of an area. They reflect the value that the community 
places in the education and the maximum achievement of 
its people, as well as indicating the general economic and 
social conditions of the community itself.

In the 17 states and the District of Columbia, there are 
530 institutions of higher learning for whites, 192 public 
colleges and universities supported by state and federal 
funds included. Institutions for Negroes number 104 in­
cluding 39 supported by public funds.4 5 Whereas Negroes 
are 22.3% of the southern population, they have but 16.4% 
of the total number of institutions providing higher educa­
tion in the southern region. More indicative, they have but 
16.9% of those supported at public expense, although their 
need is proportionately greater. Their proper * share 
(22.3%) would entail providing 48 more colleges and uni­
versities, 16 to be supported as public institutions.

What does this mean in terms of manpower? 1947 saw 
an unprecedented enrollment in colleges and universities 
throughout the country with a total of 2,338,226 students 
attending classes. 683,235 of these students were enrolled 
in southern institutions, making a ratio of students to popu­
lation of 1 :66.5 for the region.6

4 Educational Directory, Part 3, “ Colleges and Universities,”  U. S. 
Office of Education, Washington, 1947.

* By “ proper share”  we are in no way suggesting a quota, but are 
using the population as a means of measuring the adequacy and in­
adequacy of facilities and provisions made for the education of Negro 
citizens.

5 1947 Fall Enrollment in Higher Educational Institutions, U. S.
Office of Education, November 10, 1947 (Circular No. 238).



V

Enrolled in institutions supported at public expense 
were 57.9% of the white students in the South and 54.3% of 
the Negro students, while Negroes were only 10.3% of the 
total benefiting from these public facilities. Furthermore, 
only 5.5% of all expenditures for public institutions in the 
South were for Negro colleges and universities.6 The per­
cent of Negro students in public institutions should have 
been more than doubled and expenditures quadrupled were 
they receiving benefits equal to those extended to white 
students.* *

Further examination of the data reveals that there 
are more institutions both public and private (except in 
Delaware) for the use of whites than for Negroes, and which 
are consequently more geographically spaced, thereby mak­
ing the facilities more readily accessible.

A comparison of the South with the rest of the country 
shows further what the duplicated facilities of segregation 
mean. Whereas the South maintains more universities and 
colleges per 1,000 population than the rest of the nation, its 
ability to support them is far less. It may be noted that 
even with more institutions, a smaller percentage of the 
South’s population as compared with the rest of the coun­
try had in 1940 completed four or more years of college. In 
1947, there was one student in a southern college or uni­
versity for every 66.5 persons in the South, while in the 
North and West there was one student for every 52 persons 
in the population.

6 Mordecai W . Johnson, Hearings Before Subcommittee on Ap­
propriations, House of Representatives, 80th Congress, February 24, 
1947, p. 145.

* It is interesting to note that the enrollment in New York Uni­
versity in the fall semester of 1947 was 46,312. This is a larger stu­
dent body than the total enrollments in 15 of the individual southern 
states and the District of Columbia. Only Missouri and Texas had 
larger state-wide enrollments than that for this single Northern uni­
versity. In this connection, it should also be borne in mind that the 
great majority of northern Negroes find it necessary, in the face of 
restrictive quotas, to go South for their college education.



V I

We have already indicated the general state of educa­
tion prevailing in the southern states. The following data 
constitute a specific and graphic demonstration of the in­
equities in segregated education.7

1. Southern Negroes are 7.7% of the total United States 
population, yet they have only 6.1% of all institutions 
of higher education in the country. Southern whites 
are 26.7% of the total population, yet they have 
31.2% of all the colleges and universities in the coun­
try.

2. The South spends 22.3% of all money expended for 
higher education in the country, yet Negroes get only 
1.8% of this money, while southern whites get 20.5%.

3. The average expenditure for southern universities 
and colleges (even including the Negro institutions) 
is over twice the amount spent for the average Negro 
institution. Whereas $4.28 is spent per capita white, 
only $1.32 is spent per capita Negro population.*

4. In only 3 states and the District of Columbia does the 
number of Negroes enrolled in publicly supported in­
stitutions constitute a reasonable percentage of all 
students benefiting from such educational provisions 
in anything like what their proportion in the popu-
la tion  w arrants.

0% 10 20 30 40 50 60 70 80 
1 1 1 1 1 1 1 1 1

90 100% 
1 1

Population in.......mu......... mill.......... ....................
Institutions m i l l ....1.....
Expenditures ■Ill.................................... ii.liiaiPP w n n m

o k  10 2 0  30 40 50 60 70 80
North and West U]||||||||||||||||!||
South: White
South: Negro E ^ H B

i i ^90 100%

7 Sources:
The Educational Directory, 1946-47, III, p. 7.
16th Census: 1940, Population, 2nd Series, U. S. Sum­

mary, p. 47.
The Journal of Negro Education, Summer 1947, p. 468. 
Statistics of Higher Education, 1943-44, p. 70.

* For further data see Charts at the end of Appendix.



Vll

It might be asked just how the South manages to sup­
port this dual system of education? The answer is self- 
evident : by means of segregation which has resulted in the 
practice of extensive discrimination as the above charts 
indicate. For example, if expenditures in the public insti­
tutions for Negroes were equalized on a per capita popu­
lation basis, an additional $19,000,000 would have to be 
spent for higher education alone. This would raise the 
present total expenditures 463%.

Present Share

Proper Share

6}i nyi 18?4 25

(in millions of dollars)

Expenditures for Educational Purposes in Public and 
Private Colleges and Universities in the 17 States and 

the District of Columbia: 1943-44.®

White Institutions Negro Institutions

Expenditures:
Total $150,622,000 $13,438,000
Private 65,033,000 8,149,000*
Public 85,591,000 5,289,000

% of all money expended:
Total 91.8% 8.2%
Private 88.9% 11.1%
Public 94.2% 5.8%

Expenditure per student—•
Total $479.46 $393.16

Expenditure per capita 
population:

Total $4.28 $1.32
Public 2.42 .52

College Enrollment:
Total 90% 10%

* Negro private institutions carried about a 50% heavier lead in 
terms of expenditures than did private institutions for whites.

9 Adapted from Jenkins, Martin D., “ The Availability of Higher 
Education for Negroes in the Southern States,”  The Journal of Negro 
Education, Op. Cit., pp. 466.



V lll

At present, the situation is such that Negro private insti­
tutions must carry an undue burden in the attempt to fur­
nish educational facilities and opportunities to those who 
would otherwise be deprived of advanced training. This 
process will continue until such time as the southern states 
realize that the “ equal but separate doctrine”  is economi­
cally, and more important, educationally unsound.

The following excerpt from the testimony offered by Dr. 
Mordecai W. Johnson, President of Howard University, 
speaks for itself:10 *

In states which maintain the segregated system of 
education there are about $137,000,000 annually spent 
on higher education. Of this sum $126,541,795 (in­
cluding $86,000,000 of public funds) is spent on insti­
tutions for white youth only; from these institutions 
Negroes are rigidly excluded. Only $10,500,000 
touches Negroes in any way; in fact, as far as state 
supported schools are concerned, less than $5,000,000 
directly touches Negroes. . . . The amount of money 
spent on higher education by the state and federal 
government for Negroes within these states is less 
than the budget of the University of Louisiana (in 
fact only sixty-five per cent of the budget), which is 
maintained for a little over 1,000,000 people in Louis­
iana. That is one index; but the most serious index 
is this: that this little money is spread over so wide 
an area and in such a way that in no one of these 
states is there anything approaching a first-class 
university opportunity available to Negroes.

In the face of such facts, the amount of money expended 
for education assumes extreme importance, becomes, indeed, 
so basic to the quality of said education in terms of faculty, 
physical plant, educational equipment and curricular scope, 
that it renders one as unwilling as he is unable to credit the

10 Johnson, Dr. Mordecai W., Hearings Before Subcommittee on
Appropriations, House of Representatives, 80th Congress, February 
24, 1947.



IS

claim made by the southern states that their separate 
schools are equal in all respects to those furnished for 
whites.

O n  t h e  G r a d u a t e  L e v e l

A well-known educator recently wrote:12 “ The pro­
vision of higher and professional educational opportunities 
for Negroes is relatively little better today than fifteen 
years ago.”  This statement is even more graphic when 
viewed contextually: it is mainly within the last fifteen 
years that higher and professional education and training 
have assumed their broad importance. In the present day 
and age of specialization and demand for technical skills, 
there is no institution in the South where a Negro may 
pursue work leading to a doctorate. The opportunities for 
whites are vastly different: doctorates are offered in a pub­
lic institution in each of the 17 states as well as in a private 
institution in 12 states and the District of Columbia.

There are two accredited schools of medicine for 
Negroes in the South, but there are twenty-nine for 
whites.
There are two accredited schools of pharmacy for 
Negroes in the South, but there are twenty for 
whites.
There are two (one provisionally accredited) schools 
of law for Negroes in the South, but there are forty 
for whites.
There is no accredited school of engineering for 
Negroes in the South, but there are thirty-six for 
whites.

The chart on the following page demonstrates these 
facts graphically.13

12 Thompson, Charles H., The* Journal o f Negro Education, 
Howard University Press, Fall Issue, 1945, Vol. X IV , p. 267.

13 Educational Directory, 1946-7. The quote is from Higher Edu­
cation for American Democracy, Vol. I, p. 36, Op. Cit.



X

Four Year Institutions Supported at Public Expense, Offering Training 
in Specified Fields with Departments Accredited by Their 

Respective Professional Association: 1946-7.14

W h ite  :
Law Medicine Dentistry Engineering Pharmacy

Alabama 1 2 1

Arkansas 1 1 1
Delaware 1
D. C. 1:

Florida 1 1 1

Georgia 1 1 1 1
Kentucky 2 1 i 2

Louisiana 1 1 1
Maryland 1 1 i 1 1
Mississippi 1 1 1 1

Missouri 1 1 (2 yr. course) 1

N. Carolina 1 1 (2 yr. course) 1 1

Oklahoma 1 1 2 1

S. Carolina 1 1 3 2

Tennessee 1 1 i 1 1

Texas 1 1 i * 3 1

Virginia 2 2 i 3 1

West Virginia 1 1 (2 yr. course) 1 1

T o t a l : 18 15 5 26 13

14 Source: Educational Directory, Part 3, Colleges and Universities, U. S. Office 
o f Education, 1947.

* Provisionally accredited, or accredited with some reservation, or admitted on 
probation.



XI

Negro:

Law Medicine

Alabama
Arkansas
Delaware
D. C. 1
Florida
Georgia
Kentucky
Louisiana
Maryland
Mississippi
Missouri 1 *
N. Carolina
Oklahoma
S. Carolina
Tennessee
Texas
Virginia
West Virginia

T o ta l : 2

1

Dentistry
14a

Pharmacy

1 1

1

1 0 2

14a Source: Educational Directory, Part 3, Colleges and Universities, U. S. 
Office of Education, 1947.

Accrediting A ssociations :
Law: The American Bar Association 

Medicine: The American Medical Association
Dentistry: The Council on Dental Education of the American Dental Association 
Engineering: The Engineers’ Council for Professional Development 
Pharmacy: The American Council on Pharmaceutical Education, Inc.



X ll

The paucity of institutions offering opportunities for 
Negroes to pursue graduate and professional work in the 
South, coupled with the quota * system of Northern colleges 
and universities, has resulted in a serious curtailment of 
the number of highly-skilled Negro physicians, lawyers, 
engineers, etc. In 1940 there was one skilled Negro and 
white out of the following number of the South’s Negro and 
white population, respectively: 16

Profession

Doctors:
Lawyers:
Dentists: (male) 
Engineers: (male) 
Pharmacists: (male)

White Negro
843 4,891
702 27,730

2,589 13,425
655 142,944

1,711 25,246
* The President’s Commission on Higher Education comments:

“ The Quota System. At the college level a different form of 
discrimination is commonly practiced. Many colleges and uni­
versities, especially in their professional schools, maintain a se­
lective quota system for admission, under which the chance to 
learn, and thereby to become more useful citizens, is denied to 
certain minorities, particularly to Negroes and Jews.

“ This practice is a violation of a major American principle and 
is contributing to the growing tension in one of the crucial areas 
of our democracy.

“ The quota, or numerous clausus, is certainly un-American. . . .
“ The quota system denies the basic American belief that intelli­
gence and ability are present in all ethnic groups, that men of 
all religious and racial origins should have equal opportunity 
to fit themselves for contributing to the common life.

“ Moreover, since the quota system is never applied to all groups 
in the Nation’s population, but only to certain ones, we are 
forced to conclude that the arguments advanced to justify it are 
nothing more than rationalizations to cover either convenience 
or the disposition to discriminate. The quota system cannot be 
justified on any grounds compatible with democratic principles.”  
Higher Education for American Democracy, A  Report of the 
President’s Commission on Higher Education, Government 
Printing Office, Washington, D. C., December, 1947, p. 35.

10 16th Census; 1940, Population, Lctbor Force.



X lll

These are the results of segregated education. Broken 
down by individual states, the figures show up in even 
sharper relief (see Appendix Chart V for this data).

The implications of the figures presented above are ex­
tremely serious. The fallacy that Negroes are not desirous 
or capable of absorbing and utilizing specialized training 
has often been voiced by people from all parts of our nation. 
The findings of such sciences as anthropology, sociology, 
and psychology, however, refute these arguments. The 
fact is that the opportunities for Negroes are too limited 
and too few, in these and other fields as well. As a southern 
educator has recently phrased it: “ They don’t teach us 
what they blame us for not knowing. ” 16 That Negroes want 
the benefits of more and better education is evidenced by 
recent court cases, by the great increase in enrollments in 
Negro institutions, and by reports from the schools them­
selves. Howard University for the present school year 
stated that the total enrollment was over 7,000. The medical 
school which can accommodate 70 freshmen had to turn 
down 1,180 ably qualified applicants. The pharmacy and 
dentistry schools which can each accommodate 50 had over 
700 and 500 applicants, respectively.17 And Howard, it must 
be remembered, is the only public institution in the South 
where Negroes can get professional training in these fields. 
These conditions would seem to apply to other schools as 
well.*

However, the case for the extension of equal educa­
tion for the Negro rests only in part upon his equal 
educability. The basic social fact is that in a democ­

1(5 Quoted in Fred H. Hechinger’s column, The Washington Post, 
March 7, 1948.

17 The Crisis, November, 1947, p. 324.
*85%  of all Negro doctors and 90% of all Negro dentists are 

trained at Howard and Meharry, report Henry and Katherine Pringle, 
“ The Color Line in Medicine,” The Saturday Evening Post, January 
24, 1948.



XIV

racy his status as a citizen should assure him equal 
access to educational opportunity.18

E d u c a t io n a l , O p p o r t u n it y

Dr. Charles H. Thompson, Dean of the Howard Grad­
uate School, reviewing the limited number of trained Negro 
professionals, remarks: 19

Whatever other inferences may be drawn from the 
facts . . . one of the most important and inevitable 
conclusions is that Negroes in the separate school 
systems of the 17 states and the District of Columbia 
which require racial segregation have been the vic­
tims of gross discrimination in the provision of edu­
cational opportunities. On the whole Negroes have 
had only about one-fourth the educational oppor­
tunity afforded to whites in the same school systems, 
as indicated by the product turned out.

White
Negro

The following quote demonstrates some of the results 
of the conditions described above:

In the 17 states and the District of Columbia the 
median years of schooling for the white population 
was 8.4; for Negroes the median was 5.1; with a range 
for the whites running from 7.9 in Kentucky to 12.1 
in the District of Columbia; and for Negroes from 
3.9 in Louisiana to 7.6 in the District of Columbia. 
Some 13.2% of the white population had completed 
4 years of high school as compared with only 2.9% 
of the Negroes; 12.1% of the whites had had some

18 Higher Education for American Democracy, Op. Cit., Vol. II, 
p. 30.

19 Thompson, Charles II., The Journal o f Negro Education, 
Howard University Press, Vol. X V I, Summer, 1947, p. 265.



XV

college education, as compared with only 2.5% of the 
Negroes; and 4.7% of the white population had had 
4 or more years of college as contrasted with only 
1.1% of the Negroes. There were, therefore, 4 times 
as many whites as Negroes with a high school or 
college education in these states which require racial 
segregation by law.20

Although it is on the higher and professional levels of 
education that the inequities resulting from a segregated 
system can best be demonstrated, there are some differ­
entials in the indices of education which show up most 
graphically in the lower or primary levels. The following 
pages will demonstrate some of these differentials.

Inequities in Lower or Primary Education

T h e  T a x -P a y e b ’s D o lla r

$0 25I I I I I I I
White

Negro

$o 2'5 1 1

50 75 100! I 1 1 I I I I I I I

50 1 I I I I I
75 100

The tax-payer’s dollar for public education in the South 
is divided between the schools for white children and the 
schools for Negro children. The average expense per white 
pupil in ten southern states in 1944-5 was 189% greater 
than the average expense per Negro pupil. Specifically, the 
tax-payer paid $88.70 to educate his white citizens and only 
$46.95 to educate his Negro citizens.

20 Thompson, Op. Cit., p. 264.



XVI

A v e r a g e  E x p e n d it u r e  P e r  P u p il  in  A v er a g e  
D a il y  A t t e n d a n c e  : 1944-521

State White Negro % White is Greater

Alabama $68.07 $27.62 246%
Arkansas $59.63 $27.22 219%
D. C. (1947) $160.21 $126.52 127%
Florida $108.02 $54.88 197%
Georgia $88.13 $27.88 316%
Louisiana $113.30 $34.06 333%
Maryland $78.00 $69.00 113%
Mississippi * $45.79 $10.10 453%
North Carolina $74.86 $59.26 126%
South Carolina $90.00 $33.00 273%

A v e r a g e : $88.70 $46.95 189%
* Per pupil enrolled.
The value of school property in 8 southern states * in 

1944-5 amounted in all to $867,960,280.21 22 Distributed, it 
looks like this:

(in millions of dollars)
$0 100 200 300 400 500 600 700 800 900 1000

On a per capita basis of enrolled students, the picture looks 
like this:

Negro child

Js 50 75 100 125 150 175 200 225 250

In other words, 427.6% more was invested for each white 
pupil than for each Negro pupil.

150

21 The Journal o f Negro Education, Ploward University Press, 
Vol. X V I, Summer, 1947, passim.

* The eight states: Ala., Fla., Ga., Md., Miss., N. C., S. C., Tex.
22 Washington, Alethea H., The Journal o f Negro Education, 

Howard University Press, Summer Issue, Vol. X V I, 1947, p. 446.



XVII

A v e b a g e  V a l u e  o e S c h o o l P r o p e r t y  P e r  P u p il  E n r o l l e d :
1944-523

State White Negro % White is Greater

Alabama $143.00 $29.00 493%
Arkansas ## $142.87 $42.59 335%
Florida $284.11 $59.76 475%
Georgia $160.00 $35.00 457%
Louisiana ** $281.97 $50.29 561%
Maryland ** $364.06 $163.69 222%
North Carolina $203.80 $73.08 279%
South Carolina $204.00 $40.00 510%
Texas $230.25 $76.79 300%
Virginia ** $221.51 $85.54 259%

** Data for these states is for 1943-4.

T e a c h e r s ’ S a l a r ie s

$0 200 400 600 800 1000 1200 1400 1600 1800I I I I I I I I I I
White

Negro

$0 I
400

I
600

I ! I I I 1
800 1000 1200 1400 1600 1800

2000

I
2000

The amount of salary paid teachers is an important 
factor in securing and holding capable teachers. In 1944-5 
average salaries for teachers in the South were $1,513.57 
for whites and $1,187.28 for Negroes.* * The differential in 
the average for whites and Negroes amounted to $326.29, 
or phrased differently, the average salary per white was 
127.5% greater than that per Negro.

23 The Journal of Negro Education, Summer, 1947, passim, and 
Statistics of State School Systems, 1943-44.

* The salary paid Negroes in 1944-5 is lower than the average
salary paid to all teachers in the United States in 1933-34.



XV111

A ver a g e A n n u a l  T ea c h er s  S a la r ie s  : 1944-45 24

State White Negro % White is Greater

Alabama $1,185.50 $ 784.50 158%
Arkansas 1,020.00 624.00 163%
Delaware 1,953.00 1,814.00 108%
Florida 1,757.07 1,174.34 150%
Georgia 1,130.00 540.00 209%
Kentucky 1,085.00 (medians) 1,225.00
Louisiana 1,683.33 810.98 208%
Maryland ** 2,085.00 2,002.00 104%
Mississippi 1,018.01 407.81 250%
Missouri 1,239.00 1,519.00
North Carolina 1,294.50 1,305.59
Oklahoma ** 1,428.00 1,438.23
South Carolina 1,314.00 785.50 167%
Tennessee 1,147.36 1,087.88 105%
Texas 1,627.00 1,136.00 143%
Virginia ** 1,364.00 1,129.00 121%
West Virginia
D. C. 3,400.00 3,400.00

A v e r a g e : 1,513.57 1,187.28 127.5%
** Data for these states is from Statistics o f State School

Systems, 1943-44. 
n.b.

K y .: Heavy concentration o f Negro teachers in wealthier city 
districts accounts for higher salaries.

M o .: Most Negro teachers are in the 2 largest cities where both 
groups are paid higher salaries than elsewhere in the 
state.

N. C .: Both groups are paid by the same salary schedule. Negroes 
are either better trained or have greater employment 
stability.

Tenn.: Negroes had .39 more college years of training.
D. C .: These salaries are estimates. Salary range is from 

$3,150-3,750.

Negro students, as reported for 1943-44, received only 
$1,349,834 (10 states reporting) out of a total of $43,448,777 
spent by these states to take their children to and from 
school. Negro students, who in that same year comprised 
25% of the school population in the South, received only 
3.1% of all funds spent for transportation purposes. 24

24 The Journal o f Negro Education, Howard University Press, 
Vol. X V I, Summer, 1947, passim.



25 50

% of school population 

% of funds for transportation

o%I

j j p
0% 25 50

Whereas $6.11 is spent on an average per white child, only 
$.59 is similarly spent on each Negro child.25 26 This means 
that even when the schools exist, Negro children encounter 
far greater difficulties in reaching them.

T ransportation E xpen d itu re : 1943-4426
State White Negro White Neqro

(total) (total) (per capita enrolled student)

Alabama $ 2,520,102 $ 179,927 $ 6.09 $ .79
Arkansas 1,508,979 107,083 5.01 1.07
Delaware 311,064 9.05
D. C. 15,271 .28
Florida 1,589,182 106,168 6.18 1.08
Georgia 2,777,531 71,523 6.52 .28
Kentucky 1,961,947 4.02
Louisiana 3,389,131 12.58
Maryland 1,370,715 231,846 6.10 3.91
Mississippi 3,170,384 60,000 11.52 .22
Missouri 4,270,391 7.31
North Carolina 2,304,334 392,157 4.05 1.53
Oklahoma 2,464,424 192,449 5.77 5.28
South Carolina 1,410,421 8,681 5.66 .04
Tennessee 2,050,277 4.07
Texas 5,888,904 397,663 5.64 1.99
V irginia 2,702,596 6.89
West Virgina 1,995,627 5.20

T o t a l : $42,098,943 $1,349,834 $ 6.11 $ .59

The pattern of inequities resulting from segregation is 
uniform throughout the seventeen southern states and the

25 Statistics of State School Systems, Government Printing Office. 
Wash., D. G , 1943-44.

26 Ibid.



XX

District of Columbia. In order to demonstrate briefly that 
these conditions pertain in Texas, a few data are included 
to show the inequities in the lower and higher levels of 
education.

E d u c a t io n a l  F a c il it ie s  in  t h e  S t a t e  o e T e x a s

Despite the fact that petitioner’s State of Texas is a 
relatively wealthy state, the white median distribution of 
state-supported Negro classrooms is 200% greater than the 
Negro median.27 If as much money was spent on the aver­
age Negro classroom unit as there was for whites, Texas 
would have to spend an additional $5,320,000 on its 7,600 
Negro units.

The military rejection rates for failure to pass m inim um  
“ intelligence”  standards in the war period of June-July 
1943 showed great differentials between the rates for whites 
and Negroes. In Texas 10.4% of whites were rejected for 
this reason, while the comparative figure for Negroes was 
20.5% .28 In 1940 the functional illiteracy in the State of 
Texas was 16% for whites, but 36.4% for Negroes. Simi­
larly, Texas spent $92.69 in 1947 to educate each white child, 
but only $63.12 to educate each Negro child.29 30 Money in­
vested in school property shows a similar pattern; Texas 
in 1944 invested $230.25 for each white child and $76.79 for 
each Negro child.80

The length of a school term is another index for good 
educational standards. In 1943-44 the average school term 
for Negroes in Texas was 7.7 days shorter for Negroes than 
it was for whites. (This is one-third of a school month. ) 31

27 Norton, John K., and Lawler, Eugene S., An Inventory of 
Public School Expenditures in the United States, Vol. I, pp. 91, 97.

28 The Black and White o f Rejections for Military Service,. Ameri­
can Teachers Associations Studies, 1944, p. 6.

29 The Negro Yearbook, 1947, Tuskegee Institute, p. 76.
30 Statistics o f State School Systems, Government Printing Office, 

Wash., D. C., 1943-44.
31 Ibid.



XXI

A one-teacher, one-room type of school is ordinarily not the 
optimum condition under which to study. In Texas 68% 
of the schools for whites were of this type, hut the figure 
for the Negro child was 81%. The amount of money spent 
for school transportation for each white child was $5.64, 
whereas only $1.99 was spent for each Negro child.

The present state of higher education in Texas follows 
the same patterns of discrimination established on the lower 
levels. Certain examples typify how state and federal 
funds allocated for the purpose of higher education are dis­
proportionately channeled into the institutions for whites 
only.

1. In Texas, the highest salary paid a full professor at 
Prairie View University (Negro) is lower than the 
salary paid (one exception) in any of the 13 other 
public institutions for whites.32

2. Texas: “ Public institutions for Negroes do not have
as many students enrolled as the private 
institutions. Only 39.8 per cent of all Negro 
students enrolled in Texas colleges in 1929 
were attending public institutions. This fig­
ure increased to 45.2 per cent in 1944. As 
far as enrollment is concerned, the burden of 
higher learning for Negroes is actually being 
carried for Texas by the Negro private col­
lege. . . .  Five public and two private colleges 
offer courses in engineering for white stud­
ents. There is no engineering course for 
Negro students in Texas. One public and 
one private college offer medicine to white 
students. There is no medical school for 
Negro students in Texas. With the exception 
of teacher-training, nursing, and Divinity, no 
professional training is available to Negroes 
within the state. ’ ’ 33

32 See testimony of Dr. Charles H. Thompson in Record o f this 
case, p. 262.

33 The Journdl o f Negro Education, Summer, 1947, p. 431.



XXII

Petitioner has submitted this appendix in order to show 
a factual picture of the inequities which have and do result 
under a segregated system of education. This picture, as 
well as the general pattern of segregation, leads us to agree 
with this statement from the Report of the President’s Com­
mission on Higher Education:

“ We have proclaimed our faith in education as a 
means of equalizing the conditions of men. But there 
is grave danger that our present policy will make it 
an instrument for creating the very inequalities it 
was designed to prevent. If the ladder of educa­
tional opportunity rises high at the doors of some 
youth and scarcely rises at all at the doors of others, 
while at the same time formal education is made a 
prerequisite to occupational and social advance, then 
education may become the means, not of eliminating 
race and class distinctions, but of deepening and 
solidifying them.
“ It is obvious, then, that free and universal access 
to education, in terms of the interest, ability, and 
need of the student, must be a major goal in Amer­
ican education. ’ ’ 34

34 Higher Education for American Democracy, A  Report of the 
President’s Commission on Higher Education, Government Printing 
Office, Washington, D. C., December, 1947, Vol. I, p. 36.



XX111

Public Institutions of Higher Education: Texas, 1945-46

Appendix Chart I

Prairie View
W  kite (N  egro )

85.7% 14.3%
15 2

88.2% 11.8%

% of population
Number of institutions *
% of institutions
Value of plant & equipment **

Value per capita population
Total expenditures

Expenditure per capita 
population

State & Federal appropriation
Appropriation per capita 

population

Total Current income
Library expense per year
Number of faculty ***

Total salaries
Average salary

Number of students ***
% of all students in public 

institutions

$72,790,097 $4,170,910
$12.88 $4.71

$32,007,219 $871,678

$5.85 $.94
$17,712,820 $297,318

$3.23 $.32
$33,912,086 $914,141

$577,093 $19,720
1,133 (av. 178) 118

$8,504,031 $253,133
$3,987 $2,145
43,040 1,576

96.5% 3.5%

* Unless otherwise indicated these figures are based on 13 insti­
tutions for whites and one for Negroes. Data for the others 
is not available (Thompson).

** The figure for whites is based on only 11 institutions.
*** The figures for whites are based on 12 institutions.

Data is from reports from the U. S. Office of Education, Form 
SRS-21.0-46, Parts I and II.



Appendix Chart II

Total Institutions of Higher Learning

North & West South

Total Negro White
% of total U. S. 

population 65.5% 34.5% 7.7% 26.7%
Total number of 

institutions 1066 634 104 530
% of all institutions 64.7% 37.3% 6.1% 31.2%
1 institution per every 

.............. population 80,978.0 71,524.9 97,586.6 66,410.9
Total expenditures * $573,074,370 $164,060,000 $13,438,000 $150,622,000
% of total expenditures 77.7% 22.3% 1.8% 20.5%
Expenditure per capita 

population $6.66 $3.61 $1.32 $4.28
Average expenditure per 

institution $537,593 $258,770 $129,212 $284,192
% o f total population 

with 4 or more years 
of college ** 2.9% 2.0% 0.1% 1.9%
% of respective 

population 0.5% 2.5%

Sources:
The Educational Directory, 1946-47, III, p. 7.
16th Census: 1940, Population, 2nd Series, U. S. Summary, p. 47.
The Journal of Negro Education, Summer 1947, p. 468.
Statistics o f Higher Educdtion, 1943-44, p. 70.

* Since the expenditures for 137 institutions (56 in the South, 81 in the North 
and West) were not reported, we made an average of those reporting per insti­
tution ($443,608.45), making an additional $59,404,358 thereby changing the total 
to $737,134,370 spent on higher education in the United States in 1943-44.

** Percent for the country as a whole is 2.6%.



X X V

Appendix Chart III 
Length of School Term: 1943-44

State White Negro
Alabama 169.6 166.1
Arkansas 165.3 141.8
Delaware 181.5 181.7
D. C. 175.0 177.0
Florida 172.4 168.2
Georgia 175.3 165.0
Kentucky 159.2 171.6
Louisiana 180.0 156.7
Maryland 186.7 186.5
Mississippi 165.5 130.0
Missouri 182.4 193.9
North Carolina 179.9 179.9
Oklahoma 169.0 175.8
South Carolina 176.0 160.4
Tennessee 166.7 169.0
Texas 173.9 166.2
Virginia 180.0 180.0
West Virginia 172.1 173.7

A v e r a g e  :
TJ. S. A v e r a g e :

173.5
175.5

164.0

Statistics o f State School Systems, 1943-44, Federal Security 
Agency, U. S. Office of Education.



X X V I

Rejection Rates for Failure to Meet Minimum “Intelligence” 
Standards June-July, 1943: The South

Appendix Chart IV

State
Alabama 
Arkansas 
Delaware *
D. C.
Florida
Georgia
Kentucky
Louisiana
Maryland
Mississippi
Missouri
North Carolina
Oklahoma
South Carolina
Tennessee
Texas
Virginia
Wes" Virginia

i'W 8a*cv r*w 'V K.hr 
.xut AvAV' s Assec.<Jtcetf.

* i sss -v.o AV ng‘S£

Per Cent Rejected 
White Negro

8.5 25.8
9.8 31.1

0.6 9.0
3.4 19.6
8.2 27.4
6.1 5.4
6.0 30.6
2.0 21.7
5.0 31.1
2.1 10.4

10.7 16.3
3.9 16.1
8.7 43.0
5.6 9.5

10.4 20.5
8.4
4.7 X .H

xr m . x '  ~.t  S i iih try S sm a r  Amen- 

ittnsc ins neriaK.



Appendix Chart V
Ratio of Professionals to Population by Race: The South, 1940

D octors D entists L awyers E ngineers P harmacists

W N W N W N W N W N
Alabama 1,050 10,034 3,279 25,876 1,133 245,823 860 245,823 2,217 54,627
Arkansas 913 13,657 4,177 36,418 954 122,911 1,396 491,645 2,119 140,470
Delaware 714 4,485 2,305 7,175 941 17,938 218 2,022 4,485
D. C. 308 955 1,113 2,881 100 2,497 151 15,606 651 4,355
Florida 704 5,843 2,050 13,185 507 51,420 637 1,116 20,568
Georgia 850 6,955 2,651 21,699 760 135,616 802 216,985 1,625 49,315
Kentucky 1,070 2,326 3,458 7,380 997 10,192 1,181 71,344 2,626 14,269
Louisiana 686 9,132 2,043 23,314 796 141,551 555 141,551 1,492 24,266
Maryland 536 2,876 1,816 10,411 431 9,435 334 50,322 1,317 21,567
Mississippi 864 19,538 2,837 37,054 850 358,193 682 268,645 1,740 9 7 ,6 8 9
Missouri 733 1,228 1,588 5,200 661 6,789 616 34,912 1,466 9 ,3 9 9
N. Carolina 1,063 5,911 3,581 16,637 1,061 36,337 1,297 490,649 2,200 30,666
Oklahoma 976 2,156 2,931 8,850 643 6,726 658 28,025 1,669 8,007
S. Carolina 910 11,467 3,410 20,354 938 162,833 905 814,164 1,467 50,885
T  ennessee 958 2,292 3,175 6,875 912 31,796 779 254,368 2,035 14,963
Texas 901 5,637 2,882 11,412 709 40,191 592 154,065 1,559 28,887
Virginia 818 3,985 2,604 10,499 636 13,780 551 165,362 1,705 20,044
W. Virginia 1,059 2,560 3,147 4,528 1,230 6,927 742 117,754 3,366 11,775
Total South

Number 41,762 2,075 13,596 756 50,107 366 53,763 71 20,572 402
Ratio 843 4,891 2,589 13,425 702 27,730 655 142,944 1,711 25,246

Source: U. S. Census, Population, Labor Force, 1940.

TT
AX

X



XXV111

Appendix Chart VI

Rejections of White Registrants in 7 Southern States and 
Negro Registrants in 10 Northern and Border States Due to 
Failure to Meet Minimum “Intelligence” Standards, 1943

New York City

Illinois............

Massachusetts

M ichigan........

Indiana ..........

West Virginia .

Ohio ............
Kentucky ___

California

Pennsylvania

Georgia........
Virginia 
Alabama 
So '
V o.! -sus

Texas 
North vV- tv

(Selective Service Data)

■X V V' "X  'V  '.X  ; \
W - V  V s X X x O .X »  ''S -v .

•-.rtrcic







IN  TH E

Supreme Court of the United States
October Term, 1949

No. 44

HE MAN MARION SWEATT,

vs.
Petitioner,

THEOPHILUS SHICKEL PAINTER, ET AL.

BRIEF FOR PETITIONER.

R o b er t  L. C a r t e r ,
W . J. D u r h a m ,
W il l ia m  R. M in g , Jr.,
J a m es  M . N a b e it ,
T h u eg o o d  M a r s h a l l ,

Attorneys for Petitioner.
U . S im p s o n  T a t e ,
F r a n k l in  H . W il l ia m s ,

Of Counsel.

A n n e t t e  H . P e y s e r ,
Research Consultant.





I N D E X

Opinions Below ____________
PAGE

1

Jurisdiction ____________ 9
Statement of the Case___________ _______  2

Statement of Facts ___________ A
Errors Relied Upon_______________ o

Summary of Argument____________

Argument:
I—The State of Texas is forbidden by the equal pro­

tection clause of the Fourteenth Amendment to 
the United States Constitution to deny peti­
tioner’s admission to the University of Texas 
solely because of considerations of race and color 8
A. In making admission to the University of 

Texas School of Law dependent upon appli­
cant’s race or color, Texas has adopted a 
classification wholly lacking in any rational 
foundation. Therefore, it is invalid under the 
equal protection clause ____________________ 9
1. There is no valid basis for the justification

of racial segregation in the field of educa­
tion. Enforced racial segregation aborts 
and frustrates the basic purposes and ob­
jectives of public education in a democratic 
society ________________________________  12

2. Racial segregation cannot be justified as
essential to the preservation of peace and 
good order_____________________________  22

3. There is no rational basis for a legislative
assumption that different races have dif­
ferent intellectual potentialities and should 
therefore be educated in separate schools 24



11

4. State ordained segregation is a particu­
larly invidious policy which, needlessly pen­
alizes Negroes, demoralizes whites and 
tends to disrupt our democratic institutions 26

B. Under the test applicable to governmental 
action based upon race and color a denial of 
admission to the University of Texas to peti­
tioner is a clear and unwarranted deprivation
of constitutional rights ____________________  31

C. The fact that states other than Texas require 
that racially segregated educational facilities 
be maintained should not influence this Court’s 
interpretation of the equal protection clause 35

II—The decision of the court below improperly ap­
plies the equal protection clause of the Fourteenth

PAGE

Amendment__________________________________  41
A. The Fourteenth Amendment was intended to

protect Negroes against discriminatory state 
action ____________________________________  41

B. Respondents contend that racial segregation
in conformity to the requirements of the ‘ ‘ sep­
arate but equal”  doctrine affords equal pro­
tection ___________________________________  42

C. The problem with which Plessy v. Ferguson 
dealt is fundamentally different from the 
problem presented here, and that case cannot 
help this Court in making a proper determina­
tion of petitioner’s complaint_______________  44

D. This is not an appropriate case for the applica­
tion of the doctrine of stare decisis ________  46

III—If this Court considers Plessy v. Ferguson ap­
plicable here, that case should now be reexamined 
and overruled________________________________  52
A. The Plessy v. Ferguson Court did not properly 

construe the intent of the framers of the Four­
teenth Amendment ________________________  52



Ill

1. The Court improperly construed the Four­
teenth Amendment as incorporating a doc­
trine antecedent to its passage and a doc­
trine which the Fourteenth Amendment had 
repudiated_____________________________  52

2. The framers of the Fourteenth Amendment
and of the contemporaneous civil rights 
statutes expressly rejected the constitu­
tional validity of the “ separate but equal”  
doctrine _______________________________  54

B. Even comparative physical equality is not pos­
sible under a system of enforced segregation 62

IV—This record discloses the inevitability of discrim­
ination under the “ separate but equal”  formula 67
A. Negro and white college and graduate school

PAGE

facilities in Texas_________________________  67
1. Physical Facilities __________________    67
2. Current Expenditures __________________ 68

3. Curriculum ____________________________  68

4. Faculty _______________________________  69
5. Library _______________________________  70
6. Standing in the educational world and

community ____________________________  70

B. The two law schools compared_____________  71
1. Physical plant _________________________ 71
2. Library ______      72
3. Faculty _______ .1______________________  72
4. Student body __________________________  73

Conclusion________________________________________  75



IV

Table of Cases
PAGE

Acheson v. Murakami, 176 F. 2d 953 (C. C. A. 9th 1949)- 33 
Adamson v. California, 332 U. S. 46__«L_____________ 36
Bailey v. Alabama, 219 U. S. 219____________________  34
Bain Peanut Co. v. Pinson, 282 U. S. 499_____________ 10
Baskin v. Brown, 174 F. 2d 391 (C. C. A. 4th 1949)__  40
Berea College v. Kentucky, 211 U. S. 45____________43,48
Board of Tax Commissioners v. Jackson, 283 U. S. 527- 10
Bob-Lo Excursion Co. v. Michigan, 333 IT. S. 28____ 45, 47
Bridges v. California, 314 IT. S. 252 _______________ ___ 23
Buchanan v. Warley, 245 IT. S. 60_______________23, 25, 66

Cantwell v. Connecticut, 310 IT. 8 . 296 _______________ 23
Chesapeake & Ohio By. v. Kentucky, 179 IT. S. 388 ___ 43, 47
Chiles v. Chesapeake & Ohio By., 218 IT. S. 71_______ 43,47
Church of the Holy Trinity v. United States, 143 U. 8 .

457____________________________________________  54
Clark v. Kansas City, 176 U. 8 . 114_______________  10
Collins v. Oklahoma State Hospital, 76 Okla, 229, 184 P.

946_____________________________________________ 20
Continental Baking Co. v. Woodring, 286 U. S. 352 ___ 10
Connolly v. Union Sewer Pipe Co., 184 U. 8 . 540______ 9
Cory v. Carter, 48 Ind. 337 __________ ______________  52
Cummings v. Board of Education, 175 U. 8 . 528 ____ 43,47
Davis v. Meyer, 115 Nebr. 251, 212, N. W. 435_________ 20
Davis v. Schnell, 81 F. Supp. 872 (S. D. Ala. 1949), cert.

den. 336 U. S. 993 _______________________________  40
Dawson v. Lee, 83 Ky. 4 9 __________________________  52
Dominion Hotel v. Arizona, 249 U. S. 265 ____________ 10
Ex parte Endo, 323 U. S. 283 _______________________  37
Fisher v. Hurst, 333 U. S. 147_________________ _ 43, 51
Flood v. Evening Post Publishing Co., 71 S. C. 122, 50

S. E. 641 20
Flood v. News and Courier Co., 71 S. C. 112, 50 8 . E.

637____________________________________________  20
Gong Lum v. Bice, 275 U. S. 78_________________43, 49, 50
Great Atlantic & Pacific Tea Co. v. Grosjean, 301 U. S.

412____________________________________________ 10



V

PAGE

Groessart v. Cleary, 335 U. S. 464___________________ 11

Hague v. C. I. 0., 307 U. 8 . 496______________________ 12
Hall v. DeCuir, 95 U. S. 485 _______________________43, 47
Hamilton v. Board of Regents, 293 U. S. 245 ________  48
Henderson v. United States, Oct. Term 1949 No. 25 „__45, 47 
Hirabayashi v. United States, 320 H. S. 81___ 32, 33, 37, 66

Illinois ex rel. McCollum v. Board of Education, 333 
H. S. 203 ______________________________________  16

Independent School District v. Salvatierra (Tex. Civ.
App.), 33 S. W. 2d 790 _____________________ ___ . 25

In re Oliver, 333 U. S. 257 __ -______________________  36
Kenworthy v. Brown, 92 N. Y. S. 34 ________________ 20
Korematsu v. United States, 323 U. S. 214___ 20, 32, 33, 37
Kotch v. Board of River Port Pilot Commissioners, 330

U. S. 552 -------------------------------------------------------- 11, 35
Kovacs v. Cooper, 336 U. S. 77 ____________________ 34

Lehew v. Brummell, 103 Mo. 546 ____________________ 52
Lincoln Federal Labor Union v. Northwestern Iron and

Metal Company, 335 U. S. 525 _________________ 37,40
Lindsley v. Natural Carbonic Has Co., 220 U. S. 61___  11
Lovell v. Griffin, 303 U. S. 444:______________________ 12

Marsh v. Alabama, 326 U. S. 501__________________  34
Maxwell v. Bugbee, 250 U. S. 525 __________________ 9,10
Mayflower Farms v. Ten Eyck, 297 U. S. 266 ________  11
McCabe v. A. T. & S. F. Ry. Co., 235 U. S. 151_____ 43,47
Metropolitan Casualty Insurance Co. v. Brownell, 294 

U. S. 580 ______________________________________  10
Minerva Delgado v. Bastro Independent School Dis­

trict (dec. June 1948, U. S. Dist. Ct. for W. Dist. of
Tex. not officially reported) ____________________  25

Missouri ex rel. Gaines v. Canada, 305 U. S. 337 __„43, 50, 65
Morgan v. Virginia, 328 U. S. 373 ______________ 23, 45,47
Morris v. State, 109 Ark. 530, 160 S. W. 387 __________ 20

Nebbia v. New York, 291 U. S. 502 __________________ 36
Norris v. Alabama, 294 U. S. 587 ___________________ 34
Oyama v. California, 332 U. S. 633 .33, 34, 39, 62, 66



V I
PAGE

Palko v. Connecticut, 302 U. 8 . 319___________________  36
Patsone v. Pennsylvania, 232 IT. 8 . 138_______________ 10
People v. Gallagher, 93 N. Y. 438____________________  52
Pierre v. Louisiana, 306 U. S. 354____________________  34
Plessy v. Ferguson, 163 U. S. 537______7, 8, 20,44,45,46, 50,

51, 52, 53, 54, 56, 58, 61, 62, 66 
Puget Sound Power & Light Co. v. Seattle, 291 IT. S.

619 ___________________________________________  10
Quaker City Cab Co. v. Pennsylvania, 277 IJ. S. 389__  11
Queenside Hills Co. v. Saxl, 328 IT. 8 . 80______________ 11

Railway Mail Assn. v. Corsi, 326 IT. S. 88_____________ 41
Rice v. Elmore, 165 F. 2d 387 (C. C. A. 4th 1947), cert.

den. 333 U. 8 . 875 ______________________________  40
Rice v. Gong Lum, 139 Miss. 760,104 So. 105__________ 19
Roberts v. Boston, 5 Cush. (Mass.) 198 (1849)___ 52, 53, 58
Schneider v. State, 308 U. S. 147____________________12,23
Scott v. Sandford, 19 How. 393______________________  53
Shelley v. Kraemer, 334 U. S. 1_______________23, 33, 39, 66
Sipuel v. Board of Regents, 332 H. S. 631________43, 51, 66
Skinner v. Oklahoma, 316 H. S. 535_________________11, 25
Smith v. Allwright, 321 U. S. 649____________________  40
Smith v. Cahoon, 283 H. S. 553______________________  11
Smith v. Texas, 311 H. S. 128________________________  34
Southern Railway Co. v. Greene, 216 H. S. 400________ 9,11
Spencer v. Looney, 116 Ya. 767, 82 S. E. 745__________ 20
Sportono v. Fourichon, 40 La. Ann. 423, 4 So. 71______ 20
State, Games v. McCann, 21 Ohio St. 210____________52, 58
Steele v. Louisville & N. R. Co., 323 U. S. 192__________ 33
Strauder v. West Virginia, 100 H. S. 303__________9, 41, 53
Takahashi v. Fish & Game Commission, 334 H. S.

410 ------------------------------------------------------------ 33,39,66
Thornhill v. Alabama, 310 U. S. 88__________________23, 39
Truax v. Raich, 239 H. S. 33_________________________  11
Tunstall v. Brotherhood of Locomotive Firemen & En- 

ginemen, 323 H. S. 210___________________________  33
Upton v. Times Democrat Publishing Co., 104 La. 141,

28 So. 970 _____________________________________  20



United States v. American Trucking Assn., 310 U. S.
534 ___________________________________________  40

United States v. Carotene Products Co., 304 U. S. 144__31, 41
Ward v. Flood, 48 Cal. 36___________________________ 52
Westminster School Dist. v. Mendez, 161 F. 2d 774 (C.

C. A. 9th 1947) _______________________________  25
West Virginia State Board of Education v. Barnette,

319 U. S. 624 __________________________________  34
Whitney v. California, 274 U. S. 357_______________12, 23
Yick Wo v. Hopkins, 118 U. S. 356_____________ _____  65

State Constitutions and Statutes

Ala. Const., Art. XIV, Sec. 256, Ala. Code, tit. 52,
Sec. 93 (1940) _________________________________  35

Ark. Dig. Stat., Sec. 11535(c) (Pope, 1937) _________  35
Del. Const., Art. X, Sec. 2, Del. Bev. Code, c. 71, Sec.

2631 (1935) ______   35
Fla. Const., Art. XII, Sec. 12, Fla. Stat. Ann., Sec. 

228.09 (1943) ._____ ...___________________________  35
Ga. Const., Art. VIII, Sec. 1, Ga. Code Ann., tit. 32,

Sec. 937 (Supp., 1947) ________________________  35
Ky. Const., Sec. 187, Ky. Bev. Stat. Ann., Sec. 158.020 

(Baldwin, 1943) ___ _________________-__________  35
La. Const., Art. XII, Sec. 1 _____________________ ______  35
Md. Code Ann., Art. 77, c. 18, Sec. 192 (Flack, 1939)__  35
Miss. Const., Art. VIII, Sec. 207, Miss. Code Ann., Sec.

6276 (1942) ___________________________________  35
Mo. Const., Art. XI, Sec. 3, Mo. Bev. Stat. Ann., Sec. 

10349 (1943) _____      36
N. C. Const., Art. IX, Sec. 2, N. C. Gen. Stat., Sec. 

115-2 (1943) _______________________________ -___ 36
Okla. Const., Art. 1, Sec. 5, Okla. Stat., tit. 70, Sec. 455 

(as amended Laws 1949, Art. 20, Sec. 9) -------------  36

V ll
PAGE



V l l l
PAGE

S. C. Const., Art. XI, Sec. 7, S. C. Code, Sec. 5377
(1942)_________________    36

Tenn. Const., Art. XI, Sec. 12, Tenn. Code Ann., Sec.
2377 (Williams, 1934) ______________ -___________ 36

Tex. Const., Art, VII, Sec. 7, Tex. Rev. Stat., tit. 49, 
art. 2900 (Vernon, 1942) _______________________  36

Va. Conn., Art, IX, Sec. 140, Va. Code Ann., tit. 11, 
c. 33, Sec. 680 (1942) __________________________  36

W. Va. Const., Art. XII, Sec. 8, W. Va. Code Ann., Sec.
1775 (1949) _________ - __________________________ 36

Other Authorities

American Teachers Assn., The Black & White of Re­
jections for Military Service (1944) _____________18, 24

Argument of Charles Sumner, Esq., Against the Con­
stitutionality of Colored Schools in the case of 
Sarah C. Roberts v. Boston --------------------------------  21

Baruch, Glass House of Prejudice (1946) ------------—  29
Bettleheim and Janowitz, Dynamics of Prejudice, A 

Psychological and Sociological Study of Veterans
(1950)_________________________________________  73

Blascoer, Colored School Children in New York (1915)_ 30 
Bond, Education of the Negro in the American Social

Order, 3 (1934)_________________________________  27
Boudin, Truth and Fiction About the Fourteenth

Amendment, 16 N. Y. U. L. Q. Rev. 16 (1938)--------- 61
Boyer, The Smaller Law Schools: Factors Affecting 

Their Methods and Objectives, 20 Ore. L. Rev. 281
(1941)___________________________________    17

Buck, The Road to Reunion (1937) ---------------------------  61
Bunche, Education in Black and White, 5 Journal of 

Negro Education 351 (1936) ------------------------------  27
Clark, Negro Children, Educational Research Bulletin

(1923) _____________ ________________________ — -  24
Conant, A Free Classless Society: Ideal of Illusionf 

42 Harvard Alumni Bulletin 245 (1939) ---------------  16



IX

PAGE

Cong. Globe, 39th Cong., 1st Sess. (1865) ____________ 57
Cong. Globe, 39th Cong., 1st Sess. (1866)  ___________ 55
Cong. Globe, 42nd Cong., 2nd Sess. (1872) __________53, 57
Cong. Globe, 43rd Cong., 1st Sess. (1874) _______ 16, 53, 57
Cong. Rec., 43rd Cong., 1st Sess. (1874) ___________ 59, 61
3 Cong. Rec., 43rd Cong., 2nd Sess. (1875) ___________ 61
Deutscher and Chein, The Psychological Effects of En­

forced Segregation: A Survey of Social Science
Opinion, 26 Journal of Psychology 259 (1948) ____  27

Dewey, My Pedagogic Creed (1929) ________________ 14
Dollard, Caste and Color in a Southern Town (1937) _ 2 7  
Dombrowski, Attitudes of Southern University Profes­

sors Toward the Elimination of Segregation in 
Graduate Schools in the South, 19 The Journal of
Negro Education 118 (1950) ____________________ 22

Dowling, Constitutional Law (1946) ________________ 39
Douglas, Stare Decisis, 49 Col. L. Rev. 735 (1949) ___  47

Education for Freedom, Inc., A Symposium of Radio 
Broadcasts on Education in a Democracy (1943)_14,30

Factors Affecting the Admission of High School 
Seniors to College (1949), A Report of Elmo Roper 
for Committee on a Study of Discriminations in
College Admissions________________________ ...___  64

Fairman & Morrison, Does the Fourteenth Amendment 
Incorporate the Bill of Rights?, 2 Stanford L. Rev.
5 (1949) ----------------------------------------------------- 37, 39, 56

Paris, The Nature of Human Nature (1937) _________ 26
Flack, The Adoption of the Fourteenth Amendment

(1908) ------- ------------------------------_ ------------------ 55,56
Frankfurter, Some Reflections on the Reading of Stat­

utes, 47 Col. L. Rev. 527 (1947)__________________ 54
Frazier, The Negro in the United States (1949).__20, 22, 53
Gallagher, American Caste and the Negro College 

(1938) ____ .________________ ___________________ 29
Hamilton & Braden, The Special Competence of the

Supreme Court, 50 Yale L. J. 1319 (1941)________  34
Henrich, The Psychology of Suppressed People (1937) 27



X

Holmes, The Use of Law Schools, Collected Legal 
Papers (1920) _________________________________  17

James, The Philosophy of William James (1925) ___  29
Johnson, Patterns of Segregation, II, Behavioral Re­

sponse of Negroes to Segregation and Discrimina­
tion (1943) ___________________________________ 26,27

Key, Southern Politics in the State and Nation (1949) 40
Klineberg, Negro Intelligence and Selective Migration

(1935) ________________________________________  24
Klineberg, Race Differences (1935) ___    24
LaParge, The Race Question and the Negro (1945)__  29
Lasker, Race Attitudes in Children (1949)___________ 26
Lasswell and McDougal, Legal Education and Public 

Policy: Professional Training in the Public Interest,
52 Tale L. J. 203 (1943)________________________ 17,18

Loescher, The Protestant Church and the Negro (1948) 29
Locke, Dilemma of Segregation, 4 Journal of Negro

Education 407 _________________________________  65
Long, Psychogenic Hazards of Segregated Education 

of Negroes, 4 The Journal of Negro Education 343
(1935) _______________________________________ 26,27

Lusky, Minority Rights and the Public Interest, 52 Tale 
L. J. 1 (1942)__________________________________ 12,41

Mangum, Jr., The Legal Status of the Negro (1947) _ 27
Marx, Effects of International Tension on Liberty Un­

der Law, 48 Col. L. Rev. 555 (1948) ______________ 41
McG-ovney, Racial Residential Segregation by State 

Court Enforcement of Restrictive Agreement, Cov­
enants or Conditions in Deeds is Unconstitutional,
33 Calif. L. Rev. 5 (1945)________________________  31

McWilliams, Race Discrimination and the Law, 9
Science and Society No. 1 (1945) _______________ 27

Montague, Man’s Most Dangerous Myth—The Fallacy
of Race (1945) _________________________________  24

Morgan, Horace Mann, His Ideas and Ideals (1936)___ 14
Moton, What the Negro Thinks (1929) _____________26,27
Myrdal, An American Dilemma (1944)________20, 27, 28, 29
Park, The Basis of Prejudice, The American Negro, the 

Annals, Vol. 140 _______________ ________________  26

PAGE



PAGE

Peterson & Lanier, Studies in the Comparative Abili­
ties of Whites and Negroes, Mental Measurement 
Monograph (1929) _____________________________

Report of the President’s Committee on Civil Rights,
To Secure These Rights (1947) ______________20, 27,

Report of the President’s Commission on Higher Edu­
cation, Higher Education for American Democracy,
Vol. 1 (1947) ______________________________15,21,

Rose, America Divided: Minority Group Relations in
the United States (1948) ________________________

Rose, The Negro’s Morale: Group Identification and 
Protest (1949) _________________________________

Simpson, The Function of a University Law School, 49
Harv. L. Rev. 1069 (1936)_______________________

Smith, Harlan Fiske Stone: Teacher, Scholar and
Dean, 46 Col. L. Rev. 708 (1946) ________________

Smythe, The Concept of “ Jim Crow” , 27 Social Forces 
48 (1948) _____________________________________

Thompson, “ Mis-Education for Americans” , 36 Sur­
vey Graphic, 119 (1947) ________________________

Thompson, Separate But Not Equal, The Sweatt Case,
33 Southwest Review 105 (1948) _________ 22, 30, 36,

Thompson, Some Progress in the Elimination of Dis­
crimination in Higher Education in the United
States, 19 Journal of Negro Education 1 (1950)___

Tussman & ten Broek, The Equal Protection of the 
Laws, 37 Cal. L. Rev. 341 (1949) ___________10,34,

United States 16th Census, Population, 2nd Series,
U. S. Summary (1940) _______________________ 27,

United States Office of Education, Educational Direc­
tory, Vol. I l l  (1946-47) _______________________ 63,

United States Office of Education, Statistics of Higher 
Education (1943-44) ______ ...____________________

Ware, The Role of the Schools in Education for Racial 
Understanding, 13 Journal of Negro Education
(1944) ________________________________________

Warner, New Haven Negroes (1940) ________________
Young, America’s Minority Peoples (1932) -------------

24

73

27

24

26

18

17

28

29

52

30

54

63

64

63

26
30
27



XU

Notes
PAGE

36 Col. L. Rev. 283 (1936) ________________________  34
40 Col. L. Rev. 531 (1940) ________..._______________  34
46 Col. L. Rev. 639 (1946) ________________________  30
49 Col. L. Rev. 629 (1949) ______________________ 34,54
13 Mo. L. Rev. 286 (1948) ______________________ .... 21
46 Mich. L. Rev. 639 (1948) ...._____________________  30
41 Yale L. J. 1051 (1931) _______________    34
56 Yale L. J. 1051 (1947) ___________________    27
(Editorial Note) 19 Journal of Negro Education 4 

(1949) ________________________________________  22



IN' T H E

Supreme Court of the United States
October Term, 1949

No. 44

Heman Marion Sweatt,
Petitioner,

vs.

T heophilus Shickel Painter, et a l.

BRIEF FOR PETITIONER.

Opinions Below.

The Texas Court of Civil Appeals remanded this cause 
without prejudice, then affirmed the judgment of the court 
below and finally denied petitioner’s motion for rehearing. 
These decisions are set out in the record at pages 434-435, 
at pages 445-460, and at pages 460-461 respectively. The 
only reported opinion can he found in 210 S. W. 2d 442. 
The opinion of the Supreme Court of Texas denying appli­
cation for writ of error and overruling the motion for re­
hearing may be found at pages 466, and 471 of the record. 
They are not reported.



2

Jurisdiction.

Jurisdiction of this Court is invoked under Title 28, 
United States Code, Section 1257, this being a case involving 
rights secured under the Fourteenth Amendment to the 
Constitution of the United States. Petitioner commenced 
this action in the state courts of Texas on May 16, 1946. 
The District Court of Travis County, Texas denied his 
petition for writ of mandamus on June 17, 1947 (R. 438- 
440). The Texas Court of Civil Appeals affirmed this judg­
ment on February 25, 1948 (R. 445-460, 465),3 and the 
Supreme Court of Texas refused application for writ of 
error on September 29, 1948 (R. 466). At each and every 
stage of this proceeding, petitioner has raised and main­
tained his basic contention that unless he is admitted to the 
University of Texas, which Texas maintains for whites, he 
is denied the equal protection of the laws required under 
the Fourteenth Amendment.

Statement of the Case.

On May 16, 1946, petitioner filed in the 126th District 
Court of Travis County, Texas, a petition for a writ of 
mandamus seeking his admission to the University of Texas 
School of Law from which he had been excluded solely 
because of race and color (R. 403-408). On June 17, 1946, 
a hearing was held, and on June 26 the District Court 
entered judgment declaring the state’s refusal to admit 
petitioner to the University of Texas School of Law con­
stituted a denial of the equal protection of the laws since

1 There were three hearings in the lower court and two arguments 
before the Court of Civil Appeals. These details are explained infra 
under Statement of the Case. Referred to here are the final hearings 
only in these two tribunals.



3

this institution is the only one within the state which pro­
vides legal training. The court, however, refused to grant 
the writ at that time and gave respondents six months to 
provide a course of legal instruction ‘ ‘ substantially equiva­
lent”  to that which was provided at the University of 
Texas and retained jurisdiction of the cause during that 
period (E. 424-426).

On December 17, 1946, a second hearing was held, and 
the court entered final judgment dismissing the petition on 
the ground that the state had made available another law 
school providing legal training “ substantially equivalent”  
to that offered at the University of Texas and, therefore, 
had complied with its order of June 26. This judgment was 
entered although the record clearly shows that no such law 
school had been established for petitioner and other 
Negroes. The state had only promised to furnish separate 
legal educational facilities in the future (R. 426-432).

On March 26, 1947, the Court of Civil Appeals set aside 
the judgment of the trial court without prejudice and re­
manded the cause for further proceedings (R. 434-435). 
On May 12-18, 1947, a trial on the merits was held in the 
lower court. On June 17, 1947, judgment was entered for 
respondents, and the petition for writ of mandamus was 
dismissed (R. 438-440). This decision the Court of Civil 
Appeals affirmed on February 25, 1948. Its opinion ap­
pears on pages 445-460 of the record.

Motion for rehearing was denied on March 17, 1948 
(R. 460), with opinion (R. 460-461). The opinion is re­
ported in 210 S. W. 2d 442.

On September 8, 1948, the Supreme Court of Texas 
denied application for writ of error, without opinion



4

(E. 466) and on October 27, 1948, a motion for rehearing 
was overruled (R. 471). They are not officially reported.

Thereupon petitioner brought the cause here, and his 
petition for writ of certiorari was granted on November 7, 
1949 (R. 473).

Statement of Facts.

Over four years ago, petitioner duly filed an application 
for admission to the University of Texas School of Law. 
He possessed all the qualifications necessary for admission. 
It is conceded that his being a Negro was the sole reason for 
respondents’ refusal to admit him. When the May 16th 
and December 17th, 1946 hearings were held, the only state- 
supported law school in existence was the law school at the 
University of Texas which was maintained exclusively for 
whites. Thus from the time petitioner made application 
to the University of Texas on February 26, 1946, through 
the May 16th and December 17th hearings, respondents re­
fused to admit him to the only existing state facility, al­
though they had made no other provision for his education. 
Yet their defense was that they were required to furnish 
petitioner “ separate but equal”  facilities.

While the first appeal was pending in the Court of Civil 
Appeals, a separate law school for Negroes was established 
to which petitioner on March 20, 1947, was invited to attend 
(R. 175). It has been petitioner’s contention all along that 
the state has no authority to exclude him from the Univer­
sity of Texas School of Law merely because of his race and 
color, and that this separate Negro institution was not and 
could not be the equivalent of the law school of the Univer­
sity of Texas.



5

Errors Relied Upon.

I.

The Texas Court was in error in holding that the 
“separate but equal” doctrine did not violate peti­
tioner’s right to equal protection of the laws guaran­
teed by the Fourteenth Amendment to the Federal 
Constitution.

II.
The Texas Court was in error in holding that the 

law school established for Negroes at Austin was 
“substantially equal” to the law school which the state 
makes available to non-Negroes at the University of 
Texas.

III.
The Texas Court was in error in holding that the 

respondents were not required under the Fourteenth 
Amendment to the Federal Constitution to admit peti­
tioner to the school of law of the University of Texas 
on the same basis as it admits qualified non-Negro 
applicants.

IV.
The Texas Court was in error in refusing to admit 

evidence showing that in its application the “separate 
but equal” doctrine inevitably results in the Negro 
facility being inferior and hence that the doctrine re­
sults in discrimination based upon race and color in 
violation of the Federal Constitution.



6

Summary of Argument.

Petitioner contends that the Court should reverse the 
judgment of the court below on the grounds that the equal 
protection clause of the Fourteenth Amendment, as prop­
erly construed, is not conducive to an interpretation which 
would permit the State to exclude him from the University 
of Texas School of Law solely because of his race and color.

The equal protection clause has both a broad and a 
specific purpose which may be described as follows: First, 
it was broadly intended to insure that all persons similarly 
situated would be treated alike in their relationships with 
the state. Second, it was specifically meant to prohibit any 
state from denying to Negroes, as such, any rights, privi­
leges or advantages which it offers or makes available to 
white persons.

The first purpose has been interpreted as an interdiction 
against arbitrary governmental action, and hence any 
classification or distinction which a state makes can be 
justified only when it relates to some real difference having 
pertinence to a legitimate legislative objective. The second 
purpose has been interpreted as embodying a fundamental 
hostility to racial distinctions and classifications, and as 
incorporating into the fundamental law the democratic 
credo that governmental action based upon race and blood 
are necessarily arbitrary. Petitioner contends that respon­
dents’ refusal to admit him to the University of Texas 
School of Law, solely because of his race, while admitting 
white persons as a matter of course, defeats both of these 
purposes, and hence subjects him to a violation of consti­
tutional rights.

Respondents’ attempt to justify their conduct is in the 
nature of confession and avoidance. They admit that their



7

refusal to allow petitioner to enter the University of Texas 
School of Law is because of his race. They contend, how­
ever, that such conduct has been cured of unconstitution­
ality because he may now secure legal training at a Negro 
law school “ substantially equivalent”  to that being offered 
at the University of Texas. In support of their position, 
they rely chiefly on Plessy v. Ferguson, 163 U. S. 537.

Petitioner maintains that Plessy v. Ferguson is not 
applicable to this case. Whatever view may be taken as to 
the correctness of the Plessy doctrine, this Court has never 
applied that doctrine to education. Petitioner submits that 
the very purpose which education is designed to achieve in 
a democratic society is at war with the imposition of the 
arbitrary standards inherent in racial segregation. Peti­
tioner further maintains that the application of the “ sepa­
rate but equal”  formula inevitably results in racial dis­
crimination. In every instance those facilities which the 
state has set aside for Negroes as “ separate but equal” , 
measured by any conceivable standard, have been graphi­
cally inferior in nature to schools available to all other 
persons. The record discloses that this case is no exception.

This Court has long recognized that the Constitution is 
given contour and meaning only to the degree that its pro­
visions are properly applied to existing fact. An assump­
tion of equality under the doctrine of the Plessy case nulli­
fies the basic intendment of the equal protection clause 
when, as here, such equality is belied by actuality. This 
doctrine, therefore, is not a valid precedent for determining 
the constitutionality of respondents ’ acts.

If the Court should believe otherwise, petitioner submits 
that the fallacious doctrine of Plessy v. Ferguson must be 
reexamined. Such reexamination will reveal that this doc­
trine inevitably results in the application of unequal and



8

discriminatory standards by the state in its relations with 
Negroes, as contrasted with the standards employed in its 
relations with white persons. This is a denial of equal pro­
tection of the laws. Petitioner submits, therefore, that the 
Court should issue a mandate requiring respondents to 
admit him to the University of Texas School of Law on a 
non-discriminatory basis, and that Plessy v. Ferguson 
should be overruled.

A R G U M E N T .

I.

The State of Texas is forbidden by the equal pro­
tection clause of the Fourteenth Amendment to the 
United States Constitution to deny petitioner’s admis­
sion to the University of Texas solely because of con­
siderations of race and color.

Petitioner has been refused admission to the University 
of Texas because he is a Negro. Respondents defend this 
refusal on the ground that state constitutional and statu­
tory law requires Negroes and non-Negroes to be educated 
in separate schools, and that such racial segregation in the 
state’s educational system is permitted by decisions of this 
Court. Petitioner contends that refusal to admit him to the 
University of Texas solely on the basis of his race or color 
is in violation of the equal protection clause of the Four­
teenth Amendment because : (1) differences in race afford 
no rational foundation for differences in treatment, and the 
equal protection clause permits only such differences in 
treatment which accord with judicial concepts of reason­
ableness; (2) such differences in treatment violate all no­
tions of reasonableness when used to determine the avail­
ability of public educational institutions on the law school



9

level; and (3) in any event, nnder the equal protection 
clause a governmental classification based upon race or 
color is unconstitutional per se.

A. In making admission to the University of Texas School 
of Law dependent upon applicant’s race or color, Texas 
has adopted a classification wholly lacking in any 
rational foundation. Therefore, it is invalid under the 
equal protection clause.

Under Texas law, only whites, or more accurately all 
racial or color groups other than Negroes, may attend the 
University of Texas School of Law. Negroes must secure 
whatever legal educational opportunities Texas offers to 
them at a separate institution. Even if we assume, argu­
endo, that there are circumstances in which a state has the 
power to make race or color the basis of a legislative classi­
fication (a proposition which we reject in its entirety), 
nevertheless, we submit, that the difference in treatment, 
of which petitioner here complains, is one which bears no 
rational relationship to any valid legislative end, and hence 
constitutes that form of differential treatment which contra­
venes the equal protection clause.

The basic purpose and intent of the equal protection 
clause of the Fourteenth Amendment was to prohibit a 
state from denying its Negro citizens any right it gave or 
offered its white citizens. Strauder v. West Virginia, 100 
U. S. 303. A secondary purpose was to insure that all 
persons similarly situated would receive like treatment and 
that no special groups or classes should be singled out for 
favorable or discriminatory treatment. Southern Railway 
Co. v. Greene, 216 U. S. 400; Connolly v. Union Sewer Pipe 
Co., 184 U. S. 540; Maxwell v. Bugbee, 250 U. S. 525.

It will be observed that the secondary purpose is broader 
in scope than the first, since it is not primarily concerned



10

with racial distinctions hut with arbitrary distinctions of 
any kind. To determine if state legislation subserves that 
secondary purpose, this Court does not prohibit all hut only 
certain types of legislative distinctions. This adjustment 
has been necessary because the requirements of equal pro­
tection pose a relatively difficult problem. Classification 
by definition implies the imposition of duties and burdens 
upon a special class, different from that to which the gen­
eral public is subject. Metropolitan Casualty Insurance 
Co. v. Brownell, 294 U. S. 580; Puget Sound Power Light 
Co. v. Seattle, 291 U. S. 619; Board of Tax Commissioners 
v. Jackson, 283 U. S. 527; Patsone v. Pennsylvania, 232 
U. S. 138; Clark v. Kansas City, 176 U. S. 114.2

An interpretation of the equal protection clause, how­
ever, as wholly depriving the states of this power, would 
seriously threaten the orderly administration of govern­
ment.3 Yet, if the states are not carefully limited as to the 
classifications they may make, the equal protection clause 
would become meaningless. Therefore, the Court when deal­
ing with this type of legislation has devised the following 
test: If a classification is to conform to the constitutional 
mandate of equal protection, it must be based upon some 
real or substantial difference which has pertinence to a 
valid legislative objective, e. g., Dominion Hotel v. Arizona, 
249 U. S. 265; Maxwell v. Bugiee, supra; Continental Bak­
ing Co. v. Woodring, 286 U. S. 352; Great Atlantic <& Pacific

2 See also: Tussman & ten Broek, The Equal Protection of the 
Laws, 37 Calif. L. Rev. 341 (1949) for a scholarly analysis of the 
treatment of the equal protection clause by this Court.

3 “  * * * the machinery of government would not work if it were 
not allowed a little play in its joints.”  Mr. Justice H olmes, Bain 
Peanut Co. v. Pinson, 282 U. S. 499, SOI.



11

Tea Co. v. Gr os jean, 301 U. 8. 412; Queenside Hills Co. v. 
Saxl, 328 U. S. 80; Groessart v. Cleary, 335 U. S. 464.4

On the other hand where alleged differences on which 
the classification rests do not in fact exist, or cannot be 
reasonably or rationally related to the legislative end, the 
classification violates the constitutional requirement of 
equal protection, e. g., Quaker City Cab Co. v. Pennsylvania, 
277 U. S. 389; Southern B. Co. v. Greene, supra; Truax v. 
Raich, 239 U. S. 33; Smith v. Cahoon, 283 U. S. 553; May­
flower Farms v. Ten Eyck, 297 U. S. 266; Skinner v. Okla­
homa, 316 U. S. 535. The above formula has been consist­
ently followed by this Court without deviation since the 
adoption of the Fourteenth Amendment, as the most effec­
tive method of giving life and substance to the mandate of 
equal protection, while at the same time permitting the state 
freedom to deal with the everyday problems of government.5

In this case, Texas uses the dissimilarity of race and 
color between Negroes and non-Negroes as the basis for 
determining eligibility to attend the University of Texas. 
There are, in effect, two systems of education—one for 
Negroes and one for non-Negroes. If we are to test the 
constitutionality of this classification by the applicable 
standards of this Court, we must first discover and examine 
the objective the state is attempting to accomplish in pro­
viding educational advantages for its citizenry through the 
graduate and professional school levels, and then determine 
what relevance, if any, race and skin pigmentation may have 
to such purposes.

4 See: Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 78, 
for an excellent analysis of Court’s approach to a classification 
problem.

5 Of course there has been considerable disagreement on the Court 
as to whether these principles were being properly or appropriately 
applied. See e. g. Mr. Justice R utledge’s dissent in Kotch v. Board 
of River Port Pilot Commissioners, 330 U. S, 552, 565; but the 
formula itself has never been questioned.



12

1. There is no valid basis for the justification of racial 
segregation in the field of education. Enforced racial 
segregation aborts and frustrates the basic purposes and 
objectives of public education in a democratic society.

In onr search of cases and literature on the subject, both 
legal and otherwise, the only bases that we have been able 
to find on which states have attempted to justify laws which 
require the segregation of races in educational facilities 
are: (1) That racial segregation in some way aids in the 
accomplishment of the objectives which a state is attempt­
ing to bring about in setting up a system of public educa­
tion; (2) that segregation laws are necessary to preserve 
public peace and good order; and (3) that races are of 
unequal ability to participate in the educational process 
and therefore separate treatment is required. We submit 
that there is no rational connection between racial differ­
ences and any valid legislative objective which a state may 
attempt to promote in providing public education. In 
this area, therefore, identical treatment of the races is 
mandatory.

a. Our way of life is founded on a system which places 
reason above coercion.8 Lovell v. Griffin, 303 U. 8. 444; 
Schneider v. State, 308 U. S. 147; Hague v. C. I. 0., 307 
U. S. 496. Mr. Justice B randeis, in a concurring opinion 
in Whitney v. California, 274 U. S. 357, 375 said:

“ Those who won our independence believed that 
the final end of the State was to make men free to 
develop their faculties; that in its government the 
deliberative forces should prevail over the arbi­
trary.”  6

6 For a discussion of the national interest in elimination of racial 
discrimination and of the differences between ours and a totalitarian 
system see: Lusky, Minority Rights and the Public Interest, 52
Yale L. J. 1 (1942).



13

We have come to realize that democratic processes can 
only operate effectively where there is an alert and en­
lightened citizenry. In order to make certain that our citi­
zens are equipped to make rational decisions and thus main­
tain and preserve our democratic institutions, it is vital 
that their individual skills and values, as well as a prag­
matic belief in the basic tenets of democracy, be developed 
through the medium of education. This function of edu­
cation has become so important that it is no longer left 
solely in the hands of the parents or philanthropists.7 It 
is one of the highest functions of state government. In 
order that Americans may develop their intellectual ca­
pacities and ethical principles to the fullest, and thus par­
ticipate most effectively in the responsibility and duties of 
citizenship, all the forty-eight states have uniformly under­
taken to provide educational benefits at a minimum cost 
to the individual citizen.

7 As stated in 47 Am. Jur., Schools, Section 6, page 299, at com­
mon law, the parent’s control over his child extended to the acquisition 
of an education. The parent’s common law rights and duties in this 
regard “ have been generally supplemented by constitutional and statu­
tory provisions, and it is now recognized that education is a junction 
of the goverment.”  (Italics ours.)

There is another important reason for the trend towards public 
rather than private education, particularly at the university level. 
The cost of maintaining a large university at a high standard has 
become so prohibitive that some of our oldest and best private insti­
tutions are in grave financial straits which, unless alleviated, might 
necessitate their closing down. See: Address of Dr. Seymour of 
Yale University to alumni on February 5, 1950, as reported in 
N. Y. T im es, February 6, 1950, page 27, and in the N. Y. H erald 
T ribune , February 6, 1950, on page 3.

Dr. Alonzo F. Myers, Chairman of the New York University 
Department of Higher Education, at the annual luncheon of the 
Tuition Plan held in New York City on February 16, 1950, stated 
that higher education must be expanded to meet growing needs. He 
felt, however, that this expansion must occur largely in publicly sup­
ported institutions and stressed the grave financial crisis of 500 small 
private colleges. N . Y .  T im e s , February 17, 1950, page 1.



14

b. If it be a basic principle of onr American credo that 
education is a necessary function of democracy, then it 
follows logically that education must be made available to 
all citizens. Horace Mann, one of the most illustrious 
names in the history of American pedagogy, said: 8

‘ ‘ Education must be universal # # The theory
of our government is—not that all men, however 
unfit, shall be voters—but that every man, by the 
power of reason and the sense of duty, shall become 
fit to be a voter. Education must bring the practice 
as nearly as possible to the theory. As the children 
now are, so will the sovereigns soon be. How can 
we expect the fabric of the government to stand, if 
vicious materials are daily wrought into its frame­
work. Education must prepare our citizens to be­
come municipal officers, intelligent jurors, honest wit­
nesses, legislators, or competent judges of legisla­
tion—in fine, to fill all the manifold relations of life. 
For this end, it must be universal.”

Mortimer J. Adler, professor of law at the University 
of Chicago, stated the same proposition in these terms: 9

“ Liberal education is developed only when a cur­
riculum can be devised which is the same for all men, 
and should be given to all men, because it consists

8 Morgan, Horace Mann— His Ideas and Ideals, 98 (1936).
9 Education for Freedom, a Series of Radio Lectures sponsored 

and published by the Education for Freedom, Inc., New York (1943). 
Other lectures by Mark Van Doren and Dr. Robert M. Hutchins, 
among others, also included pertinent remarks on this subject; 7 
Dewey, M y Pedagogic Creed 6 (1929). (Although originally pub­
lished in 1897 it was republished by the Progressive Education Assn, 
in 1929.)



15

in those moral and intellectual disciplines which lib­
erate men by cultivating their specially rational 
power to judge freely and to exercise free will * * * ”

It has never been regarded as sufficient that some edu­
cational facilities he afforded to some of the citizens of this 
country. All of our educators, sociologists, and parent- 
groups, have uniformly held that the sources and tools of 
learning be given to all citizens alike no matter to what 
group, sect, race, or color they belong. The strength of a 
democratic educational system rests not only in its uni­
versality, but in its freedom from arbitrary distinctions. 
The highest goal of a teacher in a democracy is to teach 
democracy. To permit racial segregation in American 
schools is to contradict the basic purpose for which the 
schools exist. In 1947 the Eeport of the President’s Com­
mission on Higher Education read: 10

“  * * * the role of education in a democratic society 
is at once to insure equal liberty and equal oppor­
tunity to differing individuals and groups, and to 
enable the citizens to understand, appraise, and re­
direct forces, men, and events as these tend to 
strengthen or to weaken their liberties.”

10 A  Report of the President’s Commission on Higher Education, 
Higher Education for American Democracy, Vol. 1, 5 (1947) ; also 
at page 5 see: “ American society is a democracy: That is, its folk­
ways and institutions, its arts and sciences and religions are based on 
the principles of equal freedom and equal rights for all its members, 
regardless of race, faith, sex, occupation, or economic status. The law 
of the land, providing equal justice for the poor as well as the rich, 
for the weak as well as the strong, is one instrument by which a 
democratic society establishes, maintains, and protects this equality 
among different persons and groups. The other instrument is edu­
cation, which, as all the leaders in the making of democracy have 
pointed out again and again, is necessary to give effect tô  the equality 
prescribed by law.”



16

The language of Mr. Justice F r a n k f u r t e r  in the case 
of Illinois ex rel. McCollum v. Board of Education similarly 
supports this proposition.11

Education is not only a component part of true demo­
cratic living, but is the very essence of and medium 
through which democracy can be effected. The intent of 
the framers of the Fourteenth Amendment was indicated 
in the 43rd Congress in 1874 by these words: “ * * * that 
all classes should have the equal protection of American 
law and be protected in their inalienable rights, those rights 
which grow out of the very nature of society, and the 
organic law of this country.” 12 (Italics ours.)

c. These statements define the overall purposes and 
functions of education in a democratic society. On the pro­
fessional level, the function of the state-supported law 
school enjoys an even greater significance. For it has been

11 Illinois ex rel. McCollum v. Board of Education, 333 U. S. 203, 
216, 217: “ The sharp confinement of the public schools to secular 
education was a recognition of the need of a democratic society to 
educate its children, insofar as the State undertook to do so, in an 
atmosphere free from pressures in a realm in which pressures are 
most resisted and where conflicts are most easily and most bitterly 
engendered. Designed to serve as perhaps the most powerful agency 
for promoting cohesion among a heterogeneous democratic people, 
the public school must keep scrupulously free from entanglement in 
the strife of sects.

12 1 Cong. Globe, 43rd Congress (1874) ; Conant, “ A  Free Class­
less Society: Ideal of Illusion?’’ : Address given at N. Y. H erald 
T ribune Forum on Current Problems, 1939; Printed in 42 Harvard 
Alumni Bulletin 245 (1939) with consent of Herald Tribune: The 
Bill of Rights and academic freedom go hand in hand. Dislike of 
governmental tyranny and hatred of restraints on man’s intellectual 
power are close allies * * * If I am correct, what choice have those 
who teach our youth? None but to hope that the American ideal is 
not an illusion, that it is still valid; none but to labor unremittingly 
for a type of education which will every day quietly loosen the social 
strata; none but to believe that through the functioning of our schools 
and colleges American society will remain in essence classless and, 
by so doing, even in days of peril, preserve the heritage of the free.”



17

said by legal scholars and sociologists that: “ We are a 
nation that professes deep regard for the dignity of men 
and that in practice relies to an extraordinary degree npon 
the advice of professional lawyers in the formation and 
execution of policy. ’ ’ 13

The late Chief Justice Stone described the law in terms 
of its sociological significance: 14

“ Law performs its function adequately only when 
it is suited to the way of life of a people. With 
social change comes the imperative demand that law 
shall satisfy the needs which change has created, and 
so the problem, above all others, of jurisprudence in 
a modern world is the reconciliation of the demands, 
paradoxical and to some extent conflicting, that law 
shall at once have continuity with the past and 
adaptability to the present and future * * * We are 
coming to realize more completely that law is not 
an end, but a means to an end—the adequate con­
trol and protection of those interests, social and eco­
nomic, which are the special concern of government 
and hence of law.”

The objectives of the modern law school have been de­
scribed as being four-fold in nature: (1) to prepare for pub­
lic service; (2) to prepare for practice; (3) to prepare for 
law teaching; and (4) to prepare for legal research.15

13 Lasswell and McDougal, Legal Education and Public Policy: 
Professional Training in the Public Interest, 52 Yale L. J. 203, 291 
(1943).

14 Smith, Harlan Fiske Stone: Teacher, Scholar and Dean, 46 
Col. L. Rev. 708 (1946) ; See also: Holmes, The Use oj Law Schools, 
Collected Legal Papers 39-40 (1920) where Mr. Justice H olmes 
said that the aim of the law school must be “ not to make men smart, 
but to make them wise in their calling—to start them on a road which 
will lead them to the master.”

15 Boyer, The Smaller Law Schools: Factors Affecting Their 
Methods and Objectives, 20 Ore. L. Rev. 281 (1941).



18

It is the special duty of legal education to supply “ our 
social mechanics and many, if not most of our social in­
ventors” .16 From this source stem our main body of civic 
leaders, judges, legislators and other public servants. It 
is the law school which trains “ policy makers for the even 
more complete achievement of the democratic values that 
constitute the professed ends of American policy” .17

It is evident that the role of education in our society 
today is one of equipping our citizens with information and 
specific skills in order that they may productively enjoy 
the benefits of democracy. It is also evident that if we are 
to preserve our traditions of freedom, and if we are to com­
pete successfully at home and abroad with other ideologies 
and philosophies, our people must above all be trained and 
enlightened.18

If an enlightened citizenry is a necessary factor in the 
equation of democracy, then it follows that education is an 
integral part of the democratic process. Assuming that 
education is merely a privilege, it is one of such a peculiar 
and precious nature that those entrusted with its admin­
istration have a compelling duty rather than mere discre­
tionary power to see that no distinctions are made on the 
basis of race, creed or color. Unless Texas has some pur-

16 Simpson, The Function of a University Law School, 49 Harv 
L. Rev. 1069 (1936).

17 Lasswell and McDougal, supra note 13, at 206.
18 The importance of education in terms of national welfare and 

national interest can be emphasized in another manner. The armed 
forces reported that in the critical June-July 1943 period when the 
manpower needs for the armed services were at their peak, 34.5% 
of the Negro rejections were for educational deficiencies. American 
Teachers Assn, The Black & White of Rejections for Military Ser­
vice 5 (1944).



19

pose other than these democratic objectives outlined above,19 
it must permit all persons without regard to class or race 
to participate in these benefits on an equal basis.

Eacial separation, as it relates to a function as vital to 
the maintenance of democratic institutions as education, 
endangers devotion to the very ideals which education is 
supposed to instill. The segregated citizen cannot give 
full allegiance to a system of law and justice based on the 
proposition that “ all men are created equal”  when the 
community denies that equality by compelling his children

19 It may be that Texas has the same objective Mississippi has. 
The Mississippi Supreme Court in Rice v. Gong Lum, 139 Miss. 760, 
104 So. 105, 108, described the segregation policy of the state as 
being required to preserve the purity and integrity of the white race 
and its social policy. “ In our State no statute has defined the term 
‘colored race’ and considering the policy of the State indicated above 
we think the Constitutional Convention used the word ‘colored’ in 
the broad sense rather than the restricted sense, its purpose being to 
provide schools for the white or Caucasion race, to which schools no 
other race could be admitted, carrying out the broad dominant pur­
pose of preserving the purity and integrity of the white race and its 
social policy. (Marriage between Mongolian and whites and whites 
and Negro prohibited but not as between Negro and Mongolian.)

To all persons acquainted with the social conditions of this State 
and of the Southern States generally, it is well known that it is the 
earnest desire of the White Race to preserve its racial integrity and 
purity and to maintain the purity of the social relations as far as it 
can be done by law. It is known that the dominant purpose of the 
two sections of the Constitution of our State was to preserve the 
integrity and purity of the White Race. When the public school 
system was being created it was intended that the White Race should 
be separated from all other Races * * * Taking all of the pro­
visions of the law together it is manifest that it is the policy of this 
State to have and maintain separate schools and other places of 
association for the Races so as to prevent race amalgamation. Race 
amalgamation has been frowned on by Southern Civilization always, 
and our People have always been of the opinion that it was better for 
all races to preserve their purity. However, the segregation laws 
have been so shaped as to show by their terms that it was the White 
Race that was intended to be separated from the other races.”

(Footnote continued on p. 20.)



2 0

to attend separate schools. Nor can a member of the domi­
nant group fail to see that the community at large is daily 
violating the very principles in which he is being taught to 
believe.20

It is essential for the successful development of our 
country as a nation of free people that the understanding 
and tolerance which we wish practiced in later life be 
fostered in the classroom. A statement by Mr. Charles P. 
Sumner in 1849 has particular relevancy here.

“ And since according to our institutions, all 
classes meet, without distinction, in the performance 
of civil duties, so should they all meet, without dis­
tinction of color, in the school, beginning there those

(Footnote continued from p. 19.)

Realistically, segregation is intended to maintain and foster a belief 
in white supremacy and Negro inferiority, as is so frankly inferred in 
the above quote from the Mississippi court. Another facet of this 
belief may be gleaned from the fact that in those states where the 
segregation of the races is required, it is libelous per se, and in most 
instances slanderous per se, to label a white man as a Negro. Spor- 
tono v. Fourichon, 40 La. Ann. 423, 4 So. 71 (slander) ; Upton v. 
Times Democrat Publishing Co., 104 La. 141, 28 So. 970 (libel) ; 
Collins v. Oklahoma State Hospital, 76 Okla. 229, 184 P. 946 (libel) ; 
Flood v. Evening Post Publishing Co., 71 S. C. 122, 50 S. E. 641 
(libel) ; Flood v. News and Courier Co., 71 S. C. 112, 50 S. E. 637 
(slander) ; Spencer v. Looney, 116 Va. 767, 82 S. E. 745 (slander) ; 
Morris v. State, 109 Ark. 530, 160 S. W . 387 (slander). Cf. Plessy 
v. Ferguson, supra at 549; Contra: Kenworthy v. Brown, 92 N. Y. S. 
34; see also Davis v. Meyer, 115 Nebr. 251, 212 N. W . 435.

If belief in inferiority of Negroes is the basis for Texas policy, 
or if segregation is founded upon racial malice or animosity, then 
unquestionably the legislative objection is unconstitutional. Kore- 
matsu v. United States, 323 U. S. 214.

20 Many recent studies have pointed up the debilitating effect this 
conflict between ideals and practice causes in America. See particu­
larly Myrdal, An American Dilemma (1944) passim and chap. 45 for 
the analysis of this conflict between ideals and practice. President’s 
Committee on Civil Rights, To Secure These Rights (1947) ; Frazier, 
The Negro in the United States (1949).



2 1

relations of equality which our Constitution and laws 
promise to all.”  21

Nor can it be argued that separation is a more effective 
and economical method of providing educational advan­
tages. It is generally agreed that the duplication which 
segregation requires makes the maintenance of a dual sys­
tem of education more expensive and in general lessens 
the quality of education which would be available to all 
under an unsegregated system.22 23 *

“ Segregation lessens the quality of education for 
the whites as well. To maintain two school systems 
side by side—duplicating even inadequately the build­
ings, equipment, and teaching personnel—means that 
neither can be of the quality that would be possible 
if all the available resources were devoted to one 
system, especially not when the States least able 
financially to support an adequate educational pro­
gram for their youth are the very ones that are try­
ing to carry a double load. ’ ’ 28

The conclusion, therefore, that the use of race or color 
as a classification for the purpose of determining the availa­
bility of educational institutions bears no relation to the 
state’s objective is inescapable.

21 Argument of Charles Sumner, Esq., Against the Constitution­
ality of Colored Schools in the case of Sarah C. Roberts v. Boston, 
29-30 (1848).

22 Even if it could be shown that dual system of education is 
economically sound, that would not make the practice constitutional.

23 President’s Commission on Higher Education, op. cit. supra 
note 10, Vol. I, at 31.

That even those who believe in segregation recognize it to be 
wasteful and inefficient can be gleaned from the fact that several 
southern states in an effort to maintain segregation and yet cut down 
on excessive duplication are now embarking on an attempt to pool 
their resources in the establishment of regional graduate and pro­
fessional schools under a regional compact. See for discussion of this 
compact (N ote), 13 Mo. L. Rev. 286 (1948).



22

2 . Racial segregation cannot b e  justified as essential to the
preservation o f peace and good  order.

All the available data with regard to the admission of 
Negroes on an integrated basis to public educational facili­
ties of higher learning negates the argument that segre­
gation is required to preserve peace and good order.

The experiences of states with a racial and social policy 
similar to that of Texas demonstrate that this policy may 
he abandoned at least at the graduate and professional 
school level to the advantage of all concerned. The Uni­
versity of Maryland has admitted Negroes into its law 
school since 1935. Negroes have freely attended the Uni­
versity of West Virginia since 1939. The University of 
Arkansas in 1947 admitted a Negro to its law school on a 
segregated basis. Before the term had ended, segregation 
had been eliminated and now Negroes are attending its law 
school and school of medicine just like any other students. 
The University of Delaware is now open to Negroes, as is 
the University of Kentucky. In September 1949, a Negro 
was admitted into the University of Texas School of Medi­
cine.24 In every instance there was considerable initial 
resistance by governmental officials to the abandonment of 
segregation. Yet all of these experiments have been bene­
ficial and successful. * 16

24 Both the University of Oklahoma and Oklahoma A. & M. 
College are now open to Negroes but on a segregated basis. For 
full discussion of the lowering of these barriers, see (Editorial Note),
16 Journal of Negro Education 4-6 (1949). See also: Thompson, 
Separate But N ot Equal, The Sweatt Case, 33 Southwest Review 
105, 111 (1948). Frazier, op. cit. supra note 20, chap. 17. There 
is evidence that a large segment of the southern teaching profession 
looks with favor on the abandonment of segregated schools. For an 
interesting article on this point see, Dombrowski, Attitudes of South­
ern University Professors Toward the Elimination of Segregation in 
Graduate Schools in the South, 19 The Journal of Negro Education 
118 (1950).



23

Moreover, even assuming that the non-discriminatory 
treatment of petitioner by Texas, which the equal protec­
tion clause demands, will disturb public peace, the Court 
has consistently held that this is not a justification for the 
denial of constitutional rights to which one would other­
wise be entitled.

In Buchanan v. Warley, 245 U. S. 60, the State of Ken­
tucky attempted to defend an ordinance segregating whites 
and Negroes into separate residential areas on the ground 
that otherwise riots and disorder might result. That argu­
ment this Court dismissed with this statement:

“ It is urged that this proposed segregation will 
promote the public peace by preventing race con­
flicts. Desirable as this is, and important as is the 
preservation of the public peace, this aim cannot be 
accomplished by laws or ordinances which deny 
rights created or protected by the Federal Consti­
tution”  (p. 81).

In Shelley v. Kraemer, 334 U. S. 1, this Court reaffirmed 
the principle that the preservation of public peace and 
good order does not suffice to clothe with constitutionality 
governmental action which effects a classification or dis­
tinction based upon race. See also: Bridges v. California, 
314 U. S. 252; Cantwell v. Connecticut, 310 U. S. 296; Mor­
gan v. Virginia, 328 U. S. 373; Thornhill v. Alabama, 310 
U. S. 88; Whitney v. California, supra.25

25 Cf. Schneider v. State, supra, at 161: “ Mere legislative pref­
erences or belief respecting matters of public convenience may well 
support regulation directed at other personal activities, but be insuffi­
cient to justify such as diminishes the exercise of rights so vital to 
the maintenance of democratic institutions.”



24

3 . There is no rational basis fo r  a legislative assumption 
that different races have different intellectual potenti­
alities and should th erefore be educated in separate 
schools.

The practice of segregation has at times been rational­
ized by the claim that there are inherent differences between 
the races. This essentially racist view assumes that minori­
ties belong to inferior races, and that racial intermixture 
results in the degeneracy of the superior race. After an 
exhaustive study of all scientific data referring to the intel­
lectual capacity of different racial groups, an expert wit­
ness testified in the instant case to this effect:

“ The conclusion then, is that differences in intel­
lectual capacity or in ability to learn have not been 
shown to exist as between Negroes and whites, and 
further, that the results make it very probable that 
if such differences are later shown to exist, they will 
not prove to be significant for any educational policy 
or practice”  (R. 193-194).

One of the leading sociologists in the field of race rela­
tions has pointed out: “ There is not one shred of scien­
tific evidence for the belief that some races are biologically 
superior to others, even though large numbers of efforts 
have been made to find such evidence.”  26 Thus there is no 
rational or factual support for the racist position. The 
racist premise is completely invalid, and no act of segrega­
tion based upon it can be upheld as reasonable.27

28 Rose, America Divided: Minority Group Relations In the
United States (1948).

27 Montague, Man’s Most Dangerous Myth— The Fallacy of Race, 
188 (1945) ; American Teachers Association, op. cit. supra note 18, 
at 29; Klineberg, Negro Intelligence and Selective Migration (1935) ; 
Peterson & Lanier, Studies in the Comparative Abilities of Whites 
and̂  Negroes, Mental Measurement Monograph (1929) ; Clark, Negro 
Children, Educational Research Bulletin (1923); Klineberg, Race 
Differences, 343 (1935).



25

The fact that Texas singles out Negroes from all other 
racial groups 28 and directs that they alone shall he segre­
gated, makes this practice even more arbitrary in nature. 
Cf. Skinner v. Oklahoma, supra. It should he noted in the 
same connection that the University of Texas Medical School 
has dropped its color barriers, for the time being at least. 
Thus, this Court should say of Texas’ action what it said 
about Kentucky’s action in Buchanan v. Warley, supra, at 
page 81:

“ It is the purpose of such enactments, and it is 
frankly avowed it will be their ultimate effect, to re­
quire by law, at least in residential districts, the 
compulsory separation of the races on account of 
color. Such action is said to be essential to the main­
tenance of the purity of the races, although it is to be 
noted in the ordinance under consideration that the 
employment of colored servants in white families is 
permitted, and nearby residences of colored persons 
not coming within the blocks, as defined in the ordi­
nance, are not prohibited. ’ ’ * 33

28Independent School District v. Salvatierra (Tex. Civ. App.),
33 S. W . 2d 790; and Minerva Delgado v. Bastro Independent 
School District (decided on June 15, 1948 by United States District 
Ct. for W . Dist. of Texas) (not officially reported). It was held 
that school authorities could not segregate pupils of Mexican or other 
Latin-American descent into separate classes or schools. The basis 
for these decisions, although not specifically stated must be (1 ) that 
segregation by race is unconstitutional; (2 ) that the school authori­
ties had no specific statutory authority to segregate a racial group 
unless such a policy as to that group is specifically enacted by the 
legislature. This was the basis of the decision in Westminster School 
District v. Mendez, 161 F. 2d 774 (C. C. A. 9th 1947) ; or (3) 
that Mexicans being of the white race could not be segregated under 
any circumstances.

Whatever the basis for these decisions, the result is that the law 
in Texas apparently is that Negroes are the only racial group which 
can be segregated.



26

4 . State ordained segregation is a particularly invidious 
policy which needlessly penalizes N egroes, dem oralizes 
w hites and tends to disrupt our dem ocratic institutions.

If the racial factor has no scientific basis, then the ills 
suffered as a result of racial segregation are particularly 
invidious. We have set out above the purposes and objec­
tives of education. In light of those definitions, it is clear 
that segregation is an abortive factor in the full realization 
of its objectives and purposes.

a. First, segregation prevents both the Negro and white 
student from obtaining a full knowledge and understand­
ing of the group from which he is separated (R. 194). It 
has been scientifically established that no child at birth 
possesses either an instinct or even a propensity towards 
feelings of prejudice or superiority. These prejudices, when 
and if they do appear, are but reflections of the attitudes 
and institutional ideas evidenced by the adults about him.29 30 
The very act of segregation tends to crystallize and perpetu­
ate group isolation, and serves, therefore, as a breeding 
ground for unhealthy attitudes.80

Secondly, a feeling of distrust for the minority group is 
fostered in the community at large—a psychological at­

29 Park, The Basis of Prejudice, The American Negro, the Annals, 
Vol. 140, pages 11-20 as cited by Frazier, op. cit. supra note 20, at 
668; Faris, The Nature of Human Nature, 354, chapter on The 
Natural History of Race Prejudice (1937).

30 Lasker, Race Attitudes in Children, 48 (1949 ); Ware, The 
Role of the Schools in Education for Racial Understanding, 13 
Journal of Negro Education (1944) ; Moton, What the Negro Thinks 
(1929 ); Long, Psychogenic Hazards of Segregated Education of 
Negroes, 4 The Journal of Negro Education, 343 (1935). For an 
exhaustive study relating to the reaction of Negroes to discrimina­
tion and how their reactions affect their relations with whites, see 
Rose, The Negro’s Morale: Group Identification and Protest, passim 
(1949). Johnson, Patterns of Segregation, II, Behavioral Response 
of Negroes to Segregation and Discrimination (1943).



27

mosphere which is most unfavorable to the acquisition of a 
proper education (R. 195). This atmosphere, in turn, tends 
to accentuate imagined differences between Negroes and 
whites. In petitioner’s trial in the lower court, an espert 
witness testified to the effect that “ those (imagined) dif­
ferences are given an appearance of reality by the formal 
act of separation” .31 32

Qualified educators, social scientists, and other experts 
have expressed their realization of the fact that “ separate”  
is irreconciliable with “ equality” .82 There can be no equal­
ity since the very fact of segregation establishes a feeling of 
humiliation and deprivation to the group considered in­
ferior.33

b. Probably the most irrevocable and deleterious effect 
of segregation upon the minority group is that it imposes

31 As stated by Myrdal, op. cit. supra note 20, at 625: “ But
they are isolated from the main body of whites, and mutual ignorance 
helps reinforce segregative attitudes and other forms of race 
prejudice.”

32 Id. at page 580; Johnson, op. cit. supra note 30, at 4, 318; 
Mangum, Jr., The Legal Status of the Negro (1947); Report of 
the President’s Committee on Civil Rights, op. cit. supra note 20; 
Report of the President’s Commission on Higher Education, op. cit. 
supra note 10; Deutscher and Chein, The Psychological Effects of 
Enforced Segregation: A Survey of Social Science Opinion, 26 Jour­
nal of Psychology 259-287 (1948).

33 McWilliams, Race Discrimination and the Law, 9 Science and 
Society No. 1 (1945); 56 Yale L. J. 1051, 1052, 1059 (1947); Bond, 
Education of the Negro in the American Social Order 385 (1934) ; 
Moton, op. cit. supra note 30, at 99; Bunche, Education in Black 
and White, 5 Journal of Negro Education 351 (1936); Long, op. cit. 
supra note 30, at 336-343; Henrich, The Psychology of Suppressed 
People 52 (1937) ; Dollard, Caste and Color in a Southern Town 
269, 441 (1937) ; Young, America’s Minority Peoples 585 (1932).



28

a badge of inferiority upon the segregated group.34 This 
badge of inferior status is recognized not only by the 
minority group, but by society at large. As Myrdal has 
pointed out:

“ Segregation and discrimination have had mate­
rial and moral effects on whites, too. Booker T. 
Washington’s famous remark, that the white man 
could not hold the Negro in the gutter without get­
ting in there himself, has been corroborated by many 
white Southern and Northern observers. Through­
out this book we have been forced to notice the low 
economic, political, legal, and moral standards of 
Southern whites—kept low because of discrimina­
tion against Negroes and because of obsession with 
the Negro problem. Even the ambition of Southern 
whites is stifled partly because, without rising far, 
it is so easy to remain ‘ superior’ to the held-down 
Negroes * # * ” SB

A definitive study of the scientific works of contempo­
rary sociologists, historians and anthropologists conclu­
sively documents the proposition that the intent and result 
of segregation are the establishment of an inferiority status. 
And a necessary corollary to the establishment of this value

34 Smythe, The Concept of “ Jim Crow” , 27 Social Forces 48 
(1948) : “  ‘Jim Crow’ as used in a sociological context thus indicates 
for a specific social group the Negro’s awareness of his badge of 
inequality which he learns through the operation of a ‘Jim Crow’ 
concept in his every day living. This pattern of existence has be­
come so much a part of the nation’s social structure that it has become 
synonymous with the words ‘segregation’ and ‘discrimination’, and 
at times when ‘Jim Crow’ is indexed some authors have indexed it 
as a cross reference for these terms.”

85 Myrdal, op cit. supra note 20, at 643.



29

judgment is the deprivation suffered by both the minority 
and majority groups.36

The lawyer, as has been demonstrated above, enjoys a 
peculiar and important role of leadership and guidance in 
the community. But a professional man who has received 
his legal education in a “ separate”  or “ segregated”  school 
must necessarily reflect the attitudes of and bear the psycho­
logical scars of the society which has arbitrarily placed upon 88

88 Baruch, Glass House of Prejudice 66-76 (1946); Gallagher, 
American Caste and the Negro College 94 (1938) : Wherever pos­
sible, the caste line is to keep all Negroes below the level of the 
lowest whites. This is the first and deepest meaning of “ separate 
but equal” . Page 105: “ Not the least important aspect of the caste 
system is its results in seriously malconditioning the individuals whose 
psychological growth is strongly affected by a caste divided society. 
These influences are not limited to the Negro caste. They stamp 
themselves upon the dominant caste as well” ; LaFarge, The Race 
Question and the Negro 159 (1945) : “ Segregation, as a compulsory 
measure based on race, imputes essential inferiority to the segregated 
group. Segregation, since it creates a ghetto, brings in the majority 
of instances, for the segregated group, a diminished degree of par­
ticipation in those matters which are ordinary human rights, such as 
proper housing, educational facilities, police protection, legal justice, 
employment, * * * Hence it works objective injustice. So normal 
is the result for the individual that the result is rightly termed in­
evitable for the group at large” ; James, The Philosophy of William 
James 128 (1925) : “ Properly speaking, a man has as many social 
selves as there are individuals who recognize him and carry an image 
of him in their mind. To wound any one of these images is to wound 
him” ; Loescher, The Protestant Church and the Negro (1948): 
“ (Segregation) is, in itself, an implication of inferiority, an inferiority 
not only of status but of essence, of being” ; Thompson, “ Mis-Educa- 
tion for Americans” : 36 Survey Graphic 119 (1947): “ Educa­
tion for segregation, if it is to be effective, must perpetuate beliefs 
which define the Negro’s status as inferior, which emphasize super­
ficial differences, or which in any way suggest that the Negro is a 
lower order of being and therefore should not be expected to be 
treated like a white person.”  Page 120: “ Mis-education for segre­
gation has deleterious effects on both Negroes and whites. It requires 
mental and emotional gymnastics on both sides to adjust (or attempt 
to adjust) to the many logical and ethical contradictions of segre­
gation. The situation is crippling to the personalities of both Negro 
and white Americans.”



30

him the onus of being “ different” —a difference which car­
ries with it the tacit taint of inferiority.37 The effect upon 
the community-at-large as well as upon the Negro profes­
sional cannot fail to minimize and abort the value that such 
a person might have in the role of a lawyer and public 
servant.

c. There is no compensatory value to society as a re­
sult of the ills suffered from segregation. As we have 
pointed out above, segregation in education has produced 
deleterious effects upon both the majority and minority 
groups. We have similarly found that the only logical 
premise upon which segregation could be based—i. e., the 
existence of differences in intellectual ability as between 
the races—has been completely discredited by scientific 
studies. It would appear then, that the only remaining ra­
tionale for segregation is that although it might be admitted 
that racial segregation has no validity, the prevailing cus­
toms and mores require that segregation be broken down in 
a gradual manner.38 39 However, all available data which 
refers to instances where segregation did exist but was sub­
sequently broken down, controvert this assumption.89

37 Meikeljohn, Equality and Education, radio address given over 
the Mutual Broadcasting System and published under the auspices of 
Education for Freedom, Inc. (1943). As Alexander Meikeljohn has 
said: “ If government is carried on by consent of the governed, then 
every man is a governor * * * And as such, he and his fellow- 
rulers must be educated for their work as rulers. But the crucial 
point is, that since they are all doing the same work, they must have 
the same education.”

88 See (N ote), 46 Mich. L, Rev. 639 (1948).
39 Warner. N ew  Haven Negroes, 277 (1940 ); Blascoer, Colored 

School Children in N ew  York 10 (1915) ; Thompson, op. cit. supra 
note 24: see also Thompson, Some Progress in the Elimination of 
Discrimination in Higher Education in the United States. 19 Journal 
o f Negro Education i-6  (1949). See testimony expert witnesses this 
case.



31

Since all available evidence controverts the theory that 
Negroes have an inferior mental capacity to whites, and 
moreover, since when permitted, the two groups work well 
together and to their mutual advantage, it must be con­
cluded that any claim of inferiority is motivated solely by a 
desire to perpetuate segregation per se.40

It has been demonstrated, we submit, that Texas cannot 
show any rational relationship between racial segregation 
and the accomplishment of a legitimate legislative purpose. 
Therefore, its refusal to admit petitioner to the University 
of Texas has deprived him of the equal protection of the 
laws, under the broadest standard with which this Court 
measures compliance with that constitutional requirement.

B. Under the test applicable to governmental action based 
upon race and color a denial of admission to the Uni­
versity of Texas to petitioner is a clear and unwarranted 
deprivation of constitutional rights.

Respondents ’ action is unconstitutional for an additional 
reason. By making race and color the sole basis for its re­
fusal to admit him to the University of Texas, Texas has 
rendered its activities subject to even stricter tests of con­
stitutionality than would ordinarily be the case.

This stricter standard was foreshadowed by the state­
ment of Mr. Justice Stoxe in United States v. Carotene 
Products Co., 304 U. S. 144, note 4:

“ There may be narrower scope for operation of 
the presumption of constitutionality when legisla-

40 McGovney, Racial Residential Segregation by State Court 
Enforcement of Restrictive Agreement, Covenants or Conditions in 
Deed is Unconstitutional, 33 Calif. L. Rev. 5, 27, note 94 (1945) : 
“ When a dominant race, whether white or Negro, demands separa­
tion, it is fallacious to say * * * that the intention and effect is not 
to impose a ‘badge’ of inferiority on the other.”



32

tion appears on its face to be within a specific prohi­
bition of the Constitution, such as those of the first 
ten amendments, which are deemed equally specific 
when held to be embraced within the Fourteenth # # *

“ Nor need we inquire whether similar considera­
tions enter into the review of statutes directed at 
particular religions (citing cases), or national (cit­
ing cases), or racial minorities (citing cases); 
whether prejudice against discrete and insular minor­
ities may be a special condition, which tends seriously 
to curtail the operation of those political processes 
ordinarily to he relied upon to protect minorities, 
anc which may call for a ecrrespoiidiiigLy more 
searching judicial inquiry. eases. ''

I n  s u b s e q u e n t  r a s e s  h i s  C oast h a s  e s r o h i i s h e i  t h e s e  s u g -  

g S B s h m i s  a s  n u s n s e  a m i  h r i n r  r m i e s  m  . ; n  ~ h  

I  n y a a ss® . -  £*,.■-„■( ribse £21 ~  S. £L fflfi. h h  h -r i  
d i s - u u - . :  S n i 3 3  S l i d

■ d ' . s u . n - m a i s  i e c v s a i .  m n a a a s  s i l t h y  s e e M s e  * £  

n c ir  *Btsasny are ry h e ir  ' s r  tnEtnrs u im r- nr a 
u e r m e  w h r s e  u s e .  u r n u u s  t r i  f a u r a m - d  u y « r u  d i e  

anmme ic cqoaSy ~

Ufa Jsesks 3k££S: sari it A ■ ‘~fmistst, ~ i  nix-.-£ & iak».
2S r .  S. d s  2M:

’ ' All legal restrictions which s m d  due rrrd 
rights cd a sianrit re n a l group art immetdhtey 
suspect Thai is not to say hoar ail sum restrictions 
are unconstitutional. It is to say that courts must 
subject them to the most rigid scrutiny. Pressing



33

public necessity may sometimes justify the existence 
of such restrictions; racial antagonism never can.”

Thus, at the very least, this Court requires a stronger show­
ing of the real difference on which the classification rests, 
and a more pertinent relationship to the subject matter than 
is normally the case.41

In dealing with racial discrimination, it follows the same 
pattern which is used in dealing with interferences with 
liberties protected under the First Amendment. It does not 
abide by nor accept the judgment of the legislature but must 
determine for itself whether a violation of the constitutional * 176

41 See: Takahashi v. Fish & Game Commission, 334 U. S. 410, 
420; Oyama v. California, 332 U. S. 633, 640: Shelley v. Kraemer, 
334 U. S. 1, 21, 23. See also: Steele v. Louisville & N. R. Co., 323 
U. S. 192 and Tunstall v. Brotherhood of Locomotive Firemen &  
Enginemen, 323 U. S. 210 which, although not directly in point, are 
links in the development of this principle.

It was on the basis of a national emergency that the Court upheld 
the relocation policy in Hirabayashi v. United States, supra, and in 
Korematsu v. United States, supra. But see: Acheson v. Murakami,
176 F. 2d 953 (C. C. A . 9th 1949). Although the major emphasis 
of opinion is on the hardship caused, the court implies rather sharply 
that the relocation policy was not required by any real danger of 
sabotage but resulted from the belief of General DeWitt in disloyalty 
by blood which it likened to the doctrines with which Nazis justified 
the gas chambers of Dachau. See particularly pages 957-958. Ap­
parently, although when first presented with the problem in Hira­
bayashi, supra, and companion cases, the Ninth Circuit did not feel 
that it could look behind the stated military purpose, now with the 
war emergency past, it is ready to carefully examine and condemn 
a policy believed to be grounded on racial bias.



34

guarantee has occurred.42 Whatever the stated purpose of 
respondents’ action may be, this Court must consider all 
factors relevant to a determination of its actual and natural 
effect.43 * * * * 48 The effect here is to deprive petitioner of educa­
tional opportunities which white persons enjoy as a matter 
of course. This is that type of unequal treatment which the 
Fourteenth Amendment was designed to prevent.

Since Texas cannot justify this practice in terms of any 
overwhelming public necessity or emergency, we submit 
that here as in Oyama v. California, “  * * * there is absent

42 It is sometimes said that where the governmental action is based
upon race or color, there is a presumption of unconstitutionality.
See: Tussman & ten Broek, op. cit. supra note 2 ; (Notes), 36 Col.
L. Rev. 283 (1936), 40 Col. L. Rev. 531 (1940); 41 Yale L. J.
(1931) ; Hamilton & Braden, The Special Competence of the Supreme
Court, 50 Yale L. J. 1319, 1349-1357 (1941). This appears to be 
similar to the Court’s placement of freedom of speech, press, assembly 
and religion in a preferred position. See, e. g., Marsh v. Alabama, 
326 U. S. 501, 508; W est Virginia State Board of Education v. 
Barnette, 319 U. S. 624, 639; but cf. Mr. Justice F rankfurter  
concurring in Kovacs v. Cooper, 336 U. S. 77, 89, 95; where he 
denies that any legislation is presumptively unconstitutional which 
affects rights protected under the First Amendment. It is his view 
that “ those liberties of the individual which history has attested as 
the indispensable conditions of an open as against a closed society 
come to this Court with a momentum for respect lacking when appeal 
is made to liberties which derive merely from shifting economic 
arrangements” . Even under Mr. Justice F rankfurter ’s definition, 
however, such statutes would be lacking in the presumption of con­
stitutionality which statutes have dealing with economic and social 
welfare problems. See: (N ote) 49 Col. L. Rev. 629 (1949).

48 See: Bailey v. Alabama, 219 U. S. 219, 244; Oyama v. Cali­
fornia, supra; Smith v. Texas, 311 U. S. 128; Pierre v. Louisiana, 
306 U. S. 354; Norris v. Alabama, 294 U. S. 587.



35

tlie compelling justification which would be needed to sus­
tain discrimination of that nature.” 44

Thus, under both measurements, the state has subjected 
petitioner to an unconstitutional deprivation, and the judg­
ment of the court below should be reversed.

C. The fact that states other than Texas require that 
racially segregated educational facilities be maintained 
should not influence this Court’s interpretation of the 
equal protection clause.

1. The State of Texas may argue that the question pre­
sented here is a matter about which the legislative judg­
ment of the state should be given great weight; that since 
there are a sizable number of states in which segregated 
educational facilities are required by law, the Court should 
not here attempt to impose its judgment as to the propriety 
of such a policy, on the state.45 Respondents may also at- 44 * * * 48

44 Supra, at 640.
In Kotch v. Bd. of River Port Pilot Commissioners, supra, this

Court approved nepotism as a method of handling the selection of
pilots in Louisiana. However, the majority opinion made it clear 
that the peculiar history of piloting made it feel that there was a very 
real and valid connection between nepotism and the selection of good 
pilots, which was statute’s objective. Mr. Justice R utledge dis­
sented on the grounds that the selection was based upon blood, which 
he felt, regardless of its merits as a method, the Constitution 
condemned.

48 Separate schools are required by the constitutional and/or statu­
tory provisions of the following seventeen states :

Ala. Const., Art. X IV , Sec. 256, Ala Code, tit. 52, Sec. 93 
(1940); Ark. Dig. Stat., Sec. 11535(c) (Pope, 1937); Del. Const., 
Art. X , Sec. 2, Del. Rev. Code, c. 71, Sec. 2631 (1935); Fla. Const., 
Art. XII, Sec. 12, Fla. Stat. Ann., Sec. 228.09 (1943); Ga. Const., 
Art. V III, Sec. 1, Ga. Code Ann., tit. 32, Sec. 937 (Supp., 1947); 
Ky. Const., Sec. 187, Ky. Rev. Stat. Ann., Sec. 158.020 (Baldwin, 
1943) ; La. Const., Art. XII, Sec. 1; Md. Code Ann., Art. 77, c. 18, 
Sec. 192 (Flack, 1939); Miss. Const., Art. VIII, Sec. 207, Miss. 
Code Ann., Sec. 6276 (1942); Mo. Const, Art. XI, Sec. 3, Mo.

(Footnote continued on p. 36.)



36

tempt to accomplish, the same result by arguing that the 
problem presented here is similar to the exercise of the 
legislative judgment in enacting regulatory statutes to meet 
various economic problems, e. g., Nebbia v. New York, 291 
U. S. 502. It is submitted, however, that experiences of 
those states which require segregation in public schools are 
not relevant in determining whether petitioner’s constitu­
tional rights have been violated.

The prevailing opinion on the Court is that a claimed 
right is encompassed in the constitutional guarantee of due 
process of law if that right is fundamental to and implicit 
in our concept of liberty. See Palko v. Connecticut, 302 
U. S. 319, 325; Adamson v. California, 332 U. S. 46. In 
determining whether there has been a deprivation of due 
process, the Court sometimes looks to the practices and 
experiences of the forty-eight states and of other jurisdic­
tions, which have adopted Anglo-American jurisprudence, 
to see what view prevails as to the right being asserted. 
See, e. g., In re Oliver, 333 U. S. 257. At times in consid-

(Footnote continued from p. 35.)

Rev. Stat. Ann., Sec. 10349 (1943 ); N. C. Const., Art. IX , Sec. 2, 
N. C. Gen. Stat., Sec. 115-2 (1943); Okla. Const., Art. 1, Sec. 5, 
Okla. Stat., tit. 70, Sec. 455 (as amended Laws 1949, Art. 20, Sec 
9 ) ;  S. C. Const, Art. X I, Sec. 7, S. C. Code, Sec. 5377 (1942); 
Tenn. Const, Art. X I, Sec. 12, Tenn. Code A nn, Sec. 2377 (W il­
liams, 1934) ; Tex. Const, Art. V II, Sec. 7, Tex. Rev. Stat, tit 49 
art. 2900 (Vernon, 1942) ; Va. Conn, Art. IX , Sec. 140, Va. Code 
A nn, tit. 11, c. 33, Sec. 680 (1942 ); W . Va. Const, Art X II, 
Sec. 8, W . Va. Code A nn, Sec. 1775 (1949). O f this number, 
however, as indicated ante, Arkansas, Delaware, Kentucky, Mary­
land, West Virginia and Oklahoma have apparently abandoned this 
policy at the graduate and professional school level. Thompson, 
supra note 24. Whether their action means the permanent aban­
donment of segregation in graduate and professional schools cannot 
be predicted. Even Texas has admitted a Negro into the medical 
college of the state university, evidently as a special exception to the 
general practice of maintaining segregated schools. In the remaining 
thirty-one states Negroes are freely admitted into the state colleges, 
graduate and professional schools.



37

eration of this provision, the Court may point to the fact 
that other states have a rule contrary to the one, which 
petitioner claims is fundamental, as a basis for its refusal 
to interfere with the legislative judgment, See, e. g., 
Lincoln Federal Labor Union v. Northwestern Iron and 
Metal Company (Mr. Justice F r a n k f u r t e r ’s concurring 
opinion), 335 U. S. 525.

The Court has approached questions of due process of 
law in this manner because that concept is relatively fluid 
and vague, and because of a reluctance to confuse wisdom 
and desirability with considerations of constitutionality.

Here, however, no such problem is presented. This 
Court has stated that the due process clause of the Fifth 
Amendment forbids governmental action directed against 
a particular minority since governmental classifications 
based upon race and color are considered arbitrary. 
Hirabayashi v. United States, supra, see also Korematsu 
v. United States, supra; Ex parte Endo, 323 U. S. 283. In 
light of this interpretation, we submit that, even in the 
absence of an equal protection clause, respondents’ action 
would be condemned.

2. Here, however, petitioner is relying upon the equal 
protection clause of the Fourteenth Amendment. In con­
sidering whether a person has been denied equal treatment, 
the basic inquiry is whether white persons are being 
afforded the same right, privilege or advantage which the 
state is denying to Negroes. If a particular state affords 
its white citizens a particular right or privilege, the equal 
protection clause requires that that right also be granted to 
Negro citizens on the same basis.46

46 Fairman & Morrison, Does the Fourteenth Amendment Incor­
porate the Bill of Rightsf 2 Stanford L. Rev. 5, 138-139 (1949); 
see also: Brief of Committee of Law Teachers Against Segregation 
in Legal Education, as amici curiae, for discussion of intent of the 
framers of the 14th Amendment on this point.



38

The Court recognized this in Strauder v. West Virginia, 
100 U. S. 303, 306-307. It said:

“ It [the equal protection clause of the 14th Amend­
ment] was designed to assure to the colored race the 
enjoyment of all the civil rights that under the law 
[of the state wherein they reside] are enjoyed by 
white persons, and to give to that race the protection 
of the General Government, in that enjoyment, when­
ever it should be denied by the States * # *

“  * * * What is this but declaring that the law in 
the States shall be the same for the black as for the 
white; that all persons, whether colored or white, 
shall stand equal before the laws of the States, and, 
in regard to the colored race, for whose protection 
the amendment was primarily designed, that no dis­
crimination shall be made against them by law be­
cause of their color?”

Here the Court must determine for itself whether the gov­
ernmental activity complained of results in discriminatory 
treatment in violation of the Constitution. And the fact 
that other states may be guilty of the same disregard of 
the constitutional mandate does not meet the problem.

3. It is further submitted that it would be improper to 
consider the practices of those states, which like Texas, 
enforce a pattern of racial segregation at the graduate 
and professional school level, in any event.

As previously stated, this Court has adopted the view 
that in economic matters, it has no special competence which 
wonld warrant the substitution of its view for that of the 
legislature. A necessary adjunct to this theory of loosely 
fettered legislation is that the legislators must be subject 
to political restraint. To this end it is necessary to have 
an electorate capable of exerting a corrective force, so that 
the lack of wisdom of the law makers may be dealt with



39

through the normal political processes. The belief of the 
Court is that as long as freedom of expression is not im­
paired, the electorate will be able to check legislative im­
propriety.47 This is the basic reason for the care with 
which any impairment of freedom of speech is carefully 
scrutinized, e. g., Thornhill v. Alabama, 310 U. S. 88.

However, the Court also carefully scrutinizes threats to 
religious freedom, protected under the same constitutional 
provision; but on a different basis. Since minority sects 
or creeds might be incapable of exerting any real corrective 
force through normal political processes, the constitution 
protects them in the exercise of their religious beliefs to 
secure them against the possible hostility of the dominant 
majority. The equal protection clause was an extension of 
this constitutional protection to racial minorities. Recog­
nition of this factor is implicit in recent decisions of this 
Court. Oyama v. California, supra; Takahashi v. Fish & 
Game Commission, supra; Shelley v. Kraemer, supra.

4. Most of those states, which have traditions and prac­
tices similar to Texas in enforcing racial discrimination, 
refused in 1866 and 1867 to ratify the Fourteenth Amend­
ment, because it was felt, and correctly, that the Amend­
ment would require them to accord to Negroes the same 
rights accorded to white persons. Those states are Missis­
sippi, Maryland, Kentucky, Texas, Arkansas, Georgia, 
Florida, North Carolina, South Carolina, Virginia and 
Delaware.48

47 Dowling, Constitutional Lazv (1946) explains the Court’s phi­
losophy thus:

“ The underlying theory of the court appears to be that if, by 
striking down interferences in respect to matters of the mind, it can 
keep the market place of ideas open and the polling booths acces­
sible, it will rely upon the ordinary political processes to prevent 
abuse of power in the regulation of economic affairs. ’
48 See: Fairman and Morrison, supra note 46, at 90-95.



40

5. These same states are among those involved in the 
long history of litigation before this Court, culminating in 
Smith v. Allwright, 321 U. S. 649, because of the relentless­
ness and recklessness with which they sought to circum­
vent the guarantees of the Fifteenth Amendment. In spite 
of the sweeping decision in Smith v. Allwright, supra, some 
of these states still hope to avoid bowing to the inevitable. 
See: Bice v. Elmore, 165 F. 2d 387 (C. C. A. 4th 1947), 
cert, denied, 333 U. S. 875; Davis v. Schnell, 81 F. Supp. 
872 (S. D. Ala. 1949), cert, denied, 336 U. S. 993; Baskin 
v. Brown, 174 F. 2d 391 (C. C. A. 4th 1949).49 The efforts 
of these states to avoid compliance with the Fifteenth 
Amendment is matched by their efforts to avoid adhering 
to the requirements of the equal protection clause, and the 
“ separate but equal”  doctrine is merely a part of this 
pattern.

6. Further segregation places barriers to free and 
democratic associations. Therefore, the segregated group 
is not able to readily influence that segment of the public 
which is not as vitally concerned with his immediate prob­
lem, as, for example, it was indicated that a labor union 
might be able to do with respect to legislation concerning 
the validity of the closed shop. See: Mr. Justice Fbank- 
etjrteb ’s opinion in Lincoln Federal Labor Union v. North­
western Iron and Metal Company, supra. Racial isolation 
in fact strengthens and accentuates the evils which need 
to be combatted. Prejudice against racial minorities, as 
this Court has recognized, creates conditions which tend to 
discount those processes that ordinarily might be relied 
upon to protect individuals against arbitrary and unreason-

49 See: Key, Southern Politics in the State and Nation (1949) 
for a comprehensive analysis of the effect of Smith v. Allwright, on 
the white primary.



41

able governmental action. See: United States v. Carotene 
Products Co., supra.

Any argument that this Court should refuse to measure 
respondents’ action in terms of the limitations of the 
equal protection clause, therefore, because states other than 
Texas practice racial discrimination, should be rejected. 
Respondents have deprived petitioner of the equal protec­
tion of the laws in violation of his constitutional rights. 
For these reasons, it is submitted, the judgment of the Court 
below should be reversed.

II.
The decision of the court below improperly applies 

the equal protection clause of the Fourteenth Amend­
ment.

A. The Fourteenth Amendment was intended to protect
Negroes against discriminatory state action.

Whatever dispute there may be as to the reach of the 
Fourteenth Amendment, all agree that one of its primary 
purposes was to raise the Negro to a status of equality and 
full citizenship,50 and that the provision established a na­
tional interest in the maintenance of individual freedom 
from discrimination based upon race or color.51

Petitioner places his main reliance upon the equal pro­
tection clause. This provision, as we have stated previ­
ously, was intended to make certain that all persons simi­
larly situated receive the same treatment, and particularly, 
that racial differences should not be the basis of govern­
mental action. In this case, petitioner contends that he is

50 Strauder v. W est Virginia, supra; Railwav Mail Assn. v. Corsi, 
326 U. S. 88, 94.

51 Lusky, supra note 6. See also: Marx, Effects of International 
Tension on Liberty Under Law, 48 Col. L. Rev. 5S5, 573 (1948).



42

being treated differently, and to bis detriment, in being 
excluded from the University of Texas solely on account 
of Ms race.

B. Respondents contend that racial segregation in conform­
ity to the requirements of the “separate but equal” 
doctrine affords equal protection.

Respondents contend that the constitution and statutes 
of Texas require the state to provide legal training for 
petitioner in a school separate and apart from that main­
tained for whites. They contend that the equal protection 
clause may properly be construed as permitting such an 
arrangement of the state’s educational facilities, as long 
as the separate school is equal to the facilities maintained 
for whites. Moreover, respondents maintain that equality 
as between the two facilities need not be mathematically 
precise, but that the constitution is satisfied when the two 
facilities are “ substantially equivalent” .52 Respondents

52 This term “ substantially equal” has lately been injected as a 
qualifying limitation of the “ separate but equal” doctrine. It is difficult 
to perceive exactly what this qualification means. For one of the 
clearest and frankest definitions of the qualification see page 449 this 
record. There the Texas Court of Civil Appeals said:

“  ‘Equality’ like all abstract nouns must be defined and con­
strued according to the context or setting in which it is employed. 
Pure mathematics deals with abstract relations, predicated upon 
units of value which it defines or assumes as equal. Its equations 
are therefore exact. But in this sense there are no equations in 
nature; at least not demonstrably so. Equations in nature are 
manifestly only approximations (working hypothese) ; their ac­
curacy depending upon a proper evaluation of their units or stand­
ards of value as applied to the subject matter involved and the 
objectives in view. It is in this sense that the decisions upholding 
the power of segregation in public schools as not violative of the 
fourteenth amendment, employ the expressions ‘equal’ and ‘sub­
stantially equal' and as synonymous.”

Evidently what is meant by “ substantial equality" is that physical 
equality to the white school need only be approximated and appears 
to be an acceptance by the proponents o f the “ separate but equal”  
thesis o f the inevitability o f d£sa3a£toattio& under a segregate! system.



43

argue that this is what the Court sanctioned in Plessy v. 
Ferguson, supra; Hall v. DeCuir, 95 U. S. 485; Cummings 
v. Board of Education, 175 U. S. 528; Chesapeake d  Ohio 
By. v. Kentucky, 179 U. S. 388; Berea College v. Kentucky, 
211 U. 8. 45; Chiles v. Chesapeake d  Ohio By., 218 U. 8. 71; 
McCahe v. A. T. d  S. F. By. Co., 235 IT. S. 151; Gong Bum 
v. Bice, 275 U. 8. 78; Missouri ex rel. Gaines v. Canada, 305 
IT. 8. 337; Sipuel v. Board of Begents, 332 IT. 8. 631; Fisher 
v. Hurst, 333 IT. 8. 147; and that these cases compel affirm­
ance of the judgment of the Court below. In short, respon­
dents argue that these cases have established a principle 
whose authority has been unaffected by the Court’s ap­
proach to the general problem of classification, and its more 
recent treatment of race and color as an irrational and 
constitutionally irrelevant criterion. In other words, re­
spondents would substitute a judicially coined doctrine or 
phrase “ separate but equal”  used as an aid to the interpre­
tation of an early case for the broad language of the Con­
stitution itself:

“ No state shall * * # deny to any person * * * the
equal protection of the laws”

in order to restrict the meaning of this provision.

Petitioner contends, on the other hand, that (1) the 
equal protection clause was carefully phrased in terms of 
its limitations on the power of state government so as to 
assure the equal treatment of individuals; (2) that the 
specific purpose of the Amendment was to prevent covert 
as well as open discrimination based upon race or color; 
and (3) that discrimination inevitably results wherever the 
“ separate but equal”  doctrine is applied.03 53

53 This will be fully discussed in Part III of the brief.



44

C. The problem with which Plessy v. Ferguson dealt is 
fundamentally different from the problem presented 
here, and that case cannot help this Court in making 
a proper determination of petitioner’s complaint.

In Plessy v. Ferguson, a Louisiana statute, which re­
quired the separation of the races in railroad coach accom­
modations, was held to be a proper exercise of state au­
thority under the Fourteenth Amendment as long as the 
facilities provided for Negroes were equal to those provided 
for whites. It is true that the Court cited several state 
cases condoning racial segregation in educational facilities, 
but the decision itself was necessarily limited to the problem 
before it.

Equality of transportational facilities presents an en­
tirely different question from that of equality of educa­
tional opportunities, which is involved here. In transpor­
tation, the primary considerations are the type of comfort 
and convenience, courtesy, fare, speed, time of arrival and 
departure. In determining whether equality of opportunity 
has been offered in education, one must consider the learn­
ing process, the types of offerings provided, the necessity 
of education to the development of citizenship, loyalties 
and devotion to democratic beliefs, and the development of 
an individual as a personal and national asset; in short the 
whole function of education in a democracy. This neces­
sarily requires consideration of psychological, sociological 
and spiritual factors in addition to pure physical measure­
ments. Moreover, even as to transportation the applica­
tion of Plessy v. Ferguson, has been considerably curtailed



45

by Morgan v. Virginia, supra, and Bob-Lo Excursion Co. v. 
Michigan, 333 U. S. 28.64

It is to be remembered that Plessy v. Ferguson came to 
this Court for review of a judgment on a demurrer and that 
the sole question for consideration was a bare legal proposi­
tion as to the extent of state power. When that case was de­
cided, this Court had had no experience in dealing with the 
type of question raised, and might have believed in all sin­
cerity that assimilation of the Negro in American culture 
was impossible and that the experiment which the Four­
teenth Amendment was launching was liable to end in tragic 
failure. Experience has since demonstrated that such fears 
were groundless, and that individual development is deter­
mined by opportunity and not by race. In addition, the 
Court had before it no facts to show that racial discrimina­
tion would be the natural result of the application of the 
‘ ‘ separate but equal ’ ’ formula, and it presumed that no such 
discriminatory effect would result. There this Court said at 
550, 551:

“  * * * so far, then, as a conflict with the 14th Amend­
ment is concerned, the case reduces itself to the 
question whether the statute of Louisiana is a reason­
able regulation, and with respect to this there must 
necessarily be a large discretion on the part of the 
legislature. In determining the question of reason­
ableness it is at liberty to act with reference to the 
established usages, customs, and the traditions of

64 W e believe that the Court’s decision in Plessy v. Ferguson, 
even as limited to the subject matter of transportation, was wrongly 
decided. The pernicious effect of that decision on transportation, 
as has been stated above, has been considerably curtailed by virtue 
of Morgan v. Virginia, supra, and Bob-Lo Excursion Co. v. Michi­
gan, supra. It is our hope that decision by this Court in Henderson 
v. United States, now pending, this term No. 25, will overrule that 
case.



46

the people, and with a view to the promotion of their 
comfort, and the preservation of the public peace 
and good order. Gauged by this standard, we can­
not say that a law which authorizes or even requires 
the separation of the two races in public conveyances 
is unreasonable or more obnoxious to the 14th 
Amendment than the Acts of Congress requiring 
separate schools for colored children in the District 
of Columbia, the constitutionality of which does not 
seem to have been questioned, or the corresponding 
acts of state legislature.”

The record in this case, on the other hand, conclusively 
shows that the separation of the races in Texas with regard 
to the availability of legal educational opportunities pro­
duces inequality of treatment and of opportunity, and 
that such inequality is a direct concomitant of this 
separation. Whatever may be the view as to the cor­
rectness of the decision in Plessy v. Ferguson, there are 
such intrinsic differences between the question dealt with 
there and those now being raised that it will be of little as­
sistance in determining whether the equal protection clause 
requires Texas to admit petitioner to the School of Law of 
the University of Texas.

D. This is not an appropriate case for the application of 
the doctrine of sta re decisis.

If Plessy v. Ferguson, and the other cases cited by re­
spondents are definitive of the law presently applicable to 
this ease, we would urge that they be discarded hi light of 
changed conditions and of the necessity for different rules 
to meet new conditions. As Ur. Justice Donor as said :

s ■ - - ■ ndy be achieved
nr".an: • -nil' ■ no. ..■'•.uni ~be a - -rari­
ng of Ac teens itafc laipcfe Itftgtr upgfejr ess,



47

and through the adapting of others to current 
facts.”  55

We submit, however, that the cases cited by respondents 
do not govern this case, and that, therefore, we do not need 
to meet the problem of the impact of the doctrine of stare 
decisis on the question raised herein.

A discussion of the eases on which respondents rely will 
demonstrate, we believe, that they have no pertinence to 
the instant problem.56 * *

Cummings v. Board of Education, supra, is cited as 
adopting the “ separate but equal”  formula in the face of

55 Douglas, Stare Decisis, 49 Col. L. Rev. 735 (1949).
56 In citing Hall v. DeCuir, supra; Chesapeake & Ohio Ry. Co.

v. Kentucky, supra; Chiles v. Chesapeake & Ohio Ry. Co., supra, 
and McCabe v. A . T. &  S. F. Ry. Co., supra, respondents have gone 
far afield. Those cases involve problems concerning the impact of
state regulations upon the national interest in the free flow of com­
merce. Hall v. DeCuir, supra, struck down, as a burden upon com­
merce, a Louisiana statute requiring the equal treatment of the races 
by common carriers. Recently, however, in Morgan v. Virginia, 
supra, a Virginia statute which required the segregation of the races 
in interstate commerce was declared unconstitutional for the same 
reason. And cf. Bob-Lo Excursion Co. v. Michigan, supra, where 
the Court permitted the application of a state civil rights statute to a 
carrier operating in foreign commerce on the ground that although 
regulating foreign commerce, the activities involved were such a 
peculiar adjunct of local commerce as to require exceptional treat­
ment. It was further suggested on page 37 that there could be no 
interference with national interest in the application of a state statute 
prohibiting racial discrimination since our national policy and policy 
of Canada were opposed to discrimination based on race. Hence 
Hall v. DeCuir, supra; McCabe v. A. T. & S. F. Ry. Co., supra; 
Chesapeake & Ohio Ry. Co. v. Kentucky, supra; and Chiles v. Chesa­
peake & Ohio Ry. Co., supra, have been stripped almost of any real 
significance whatsoever. The basic inquiry as to the Chiles case is 
whether it may still be considered as a precedent for authorizing 
common carriers to segregate the races in interstate commerce under 
their own private rules and regulations. That question undoubtedly 
will be decided this term in Henderson v. United States, supra 
note 54.



48

the fact that the Court specifically states that this problem 
was not before it.

“ It was said at the argument that the vice in the 
common-school system of Georgia was the require­
ment that the white and colored children of the state 
be educated in separate schools. But we need not 
consider that question in this case. No such issue was 
made in the pleadings. Indeed, the plaintiffs dis­
tinctly state that they have no objection to the tax 
in question so far as levied for the support of 
primary, intermediate, and grammar schools, in the 
management of which the rule as to the separation of 
the races is enforced. We must dispose of the case 
as it is presented by the record.” 87

Berea College v. Kentucky, supra, involved the consti­
tutionality of a Kentucky statute which made it unlawful 
for any person or corporation to operate a school or college 
which received both Negroes and whites as pupils. This 
Court upheld the constitutionality of the statute but was 
careful to state that it was not considering the validity of 
its application to individuals.58 Therefore, at most, this 
decision stands for the proposition that a state may prohibit 
corporations from accepting students of both races in the 
same institution without doing violence to the guarantees 
of the Fourteenth Amendment.59 Even this proposition 
now seems questionable. At any rate, there is little doubt 
that a state may exercise greater power in its dealings with 
corporations than it is permitted in its relations with an 
individual.

57 At pages 543, 544.
58 At page 54.
59 In granting privileges and _ advantages which it may withhold 

a state may exact conditions which under ordinary circumstances it 
would be unable to do. See: Hamilton v. Board of Reaents 293 
U. S. 245. y



49

In Gong Lum v. Rice, supra, a Chinese child was denied 
admission to a white school in her district. She contended 
that the state conld not group her with Negroes for the pur­
pose of determining what public school she could attend. 
No question was raised concerning the power of the state 
to adopt and enforce a racial classification.60 The gravamen 
of plaintiff’s contention was that if whites had the au­
thority and the power to protect themselves against contact 
with Negroes, who were regarded as peculiar and inferior 
beings, then Chinese should have the same privilege.

‘ 4 Of course it is the white, or Caucasian race, that 
makes the laws and construes and enforces them. It 
thinks that in order to protect itself against the in­
fusion of the blood of other races its children must be 
kept in schools from which other races are excluded. 
The classification is made for the exclusive benefit of 
the law making race. * # *

“ If there is danger in the association [with Ne­
groes], it is a danger from which one race is entitled 
to protection just the same as another. The White 
race may not legally expose the Yellow race to a 
danger that the dominant race recognizes and, by 
the same laws, guards itself against * * * ” 61

# * # # # # *

“  * # * The White race protects itself against con­
ditions that would require social contact [with Ne­
groes]. This, as the Mississippi courts say, to pre­
serve the integrity of the Caucasian race. But has 
not the Chinese citizen the same right to protection 
that the Caucasian citizen has? * * # Can we arro­
gate to ourselves the superior right to so organize the 
public school system as to protect our racial integ­

60 Brief of Plaintiff-in-Error filed here at page 14 concedes this 
authority.

61 Id. at 9 and 10.



50

rity without regard to the interests or welfare of 
citizens of other races ? ”  62

“ It appears, too, from the discussions in the cases 
and by the note writers that the courts have taken 
cognizance of the fact that the [Negro] is not de­
sired as a social equal by the members of the 
White race, and, therefore, the White race has made 
its laws with a view to preventing such social contact 
as would have a tendency to foster social relations 
and social equality. But this same precaution, taken 
with respect to its own children, is omitted when it 
comes to dealing with the children of the other 
races.”  63

This Court felt that the question raised had been settled 
by Plessy v. Ferguson. In that we think it was in error. 
Mr. Chief Justice Taut was of the opinion, apparently, that 
once plaintiff conceded that the state could classify on the 
basis of race, which petitioner denies in this case, there was 
no basis for the argument that it could not classify Chinese 
and Negroes together for the purpose of receiving public 
educational advantages. At any rate, Gong Lum v. Rice, 
cannot be a precedent for the application of the Plessy v. 
Ferguson formula in the field of education when that ques­
tion was not before the Court.

In Missouri ex rel. Gaines v. Canada, supra, the question 
presented was whether the State of Missouri had denied to 
petitioner the equal protection of the laws in excluding him, 
because he was a Negro, from the only law school main­
tained by the state. That same question was initially pre­
sented to the court below in this case. Although the i ‘ sepa­

62 Id. at 13, 14.
63 Id. at 17.



51

rate but equal doctrine”  was mentioned, the Court held 
only that it was a denial of equal protection to provide edu­
cational advantages for whites and deny these advantages 
to Negroes. That decision is no authority for respondents’ 
contention that the application of the “ separate but equal”  
doctrine to a state’s educational system complies with the 
requirements of the Fourteenth Amendment.

In Bipuel v. Board of Regents, supra, this Court decided 
that a state was under an obligation to afford to Negroes 
whatever educational advantages it offered whites and at 
the same time. In the argument here, counsel stated that 
the constitutionality of the state’s segregation laws was not 
an issue in the case. For that reason when an original writ 
of mandamus was sought in the same case, sub nom. Fisher 
v. Hurst, supra, on the grounds that the setting up of a seg­
regated school was a denial of equal protection, the Court 
refused to consider the question.

In none of the cases, therefore, on which respondents 
rely has the “ separate but equal doctrine”  been in fact ap­
plied to determine the reach of the equal protection clause 
in the relationship of a state to the individual. Moreover, 
in none of these cases has the doctrine been reexamined. 
There are no precedents, therefore, to which this Court must 
give weight which hold that the ‘ ‘ separate but equal ’ ’ doc­
trine is a valid measure of the individual’s entitlement to 
equal treatment with respect to the educational advantages 
a state offers. Therefore, we are left only with Plessy v. 
Ferguson, which, as we have pointed out, did not involve 
educational facilities, as a precedent for the application of 
the “ separate but equal doctrine”  in determining the reach 
of state power under the limitations of the Fourteenth 
Amendment. And, it is submitted, that case is not appli­
cable to this problem.



52

III.

If this Court considers Plessy v. Ferguson applicable 
here, that case should now be reexamined and over­
ruled.

We have set out in a preceding section of this brief the 
reasons for our contention that Plessy v. Ferguson is not 
pertinent to the issues herein raised, and that decision may 
be reached here without its being considered. However, if 
the Court should be of a contrary opinion, then, we submit, 
Plessy v. Ferguson should be reexamined and overruled.

A. The Plessy v. Ferguson Court did not properly construe 
the intent of the framers of the Fourteenth Amendment.

1. The Court improperly construed the Fourteenth Am end­
ment as incorporating a doctrine antecedent to its pas­
sage and a doctrine which the Fourteenth Amendment 
had repudiated.

In Plessy v. Ferguson the Court was required to inter­
pret the recently adopted Fourteenth Amendment. In find­
ing its intent and purpose a method was used which was 
both unusual and fallacious. A  series of state cases, but 
chiefly Roberts v. Boston, 5 Cush. (Mass.) 198, were cited 
as sources for reading the “ separate but equal”  formula 
into the Fourteenth Amendment.64 In that case, decided in 
1849, prior to the adoption of the Fourteenth Amendment, 
a Negro girl contended that Boston authorities could not

64 Other state cases cited include People v. Gallagher, 93 N. Y. 
438; Ward v. Flood, 48 Cal. 36; State, Games v. McCann, 21 Ohio 
St. 210; Lehew  v. Brummell, 103 Mo. 546; Cory v. Carter, 48 Ind. 
337; Dawson v. Lee, 83 Ky. 49. It is interesting to note that all 
these states have now abolished segregation in public schools with the 
exception of Kentucky. Even there, however, Negroes are attending 
the graduate and professional schools of the University of Kentucky. 
See Thompson, supra note 24.



53

require her to attend a segregated school.65 66 The Supreme 
Court of Massachusetts held that her exclusion from the 
regular school did not violate any of her rights under the 
state constitution, since the city had made provision for 
her education at a separate school equal to the school main­
tained for whites. This case is the basic source for the 
finding in Plessy v. Ferguson that the Fourteenth Amend­
ment condoned racial segregation on a “ separate hut 
equal”  basis.

It should be remembered that when Roberts v. Boston, 
supra, was decided, it was believed that Negroes were in­
ferior sub-human beings who could never be equal to whites, 
and Mr. Chief Justice T a n e y  in Scott v. Sandford, 19 How. 
393, wrote that belief into the fundamental law.68

The Thirteenth, Fourteenth and Fifteenth Amendments 
repudiated the Dred Scott decision. These constitutional 
provisions were primarily intended to raise the Negro to 
a status equal to that of whites, to free and protect him 
from any stigma, degradation or discrimination which his 
race, color or previous condition of servitude might other­
wise invite. Strauder v. West Virginia, supra. Yet in in­
terpreting one of the constitutional provisions defining 
this new status, the Plessy v. Ferguson Court looked for 
its intent and meaning in a pre-Fourteenth Amendment 
philosophy—a philosophy which the new Amendment spe­
cifically repudiated.67 Since these were new rights which had

_ 65 Her attorney was Charles Sumner, later one of the persons 
chiefly responsible for drafting and steering through Congress the 
Thirteenth, Fourteenth and Fifteenth Amendments and Civil Rights 
Legislation passed thereunder.

66 Historians credit this decision as one of the causes of the Civil 
War. See: Frazier, op. cit. supra note 20.

67 See Cong. Globe, 42nd Cong., 2d Sess. 3261 (1872); Cong.
Globe, 43rd Cong., 1st Sess. 4081, 4082, 4116 (1874).



54

been created, the intent of the framers of the Thirteenth, 
Fourteenth and Fifteenth Amendments should have been 
the primary sources for determining their meaning and 
purpose. Had this method been followed, modern scholars 
are of the opinion that the Court would necessarily have 
concluded that the “ separate but equal”  doctrine was di­
rectly contrary to objectives which the Fourteenth Amend­
ment was mean to accomplish.68

2. The framers of the Fourteenth Amendment and of the 
contemporaneous civil rights statutes expressly rejected  
the constitutional validity of the “ separate hut equal”  
doctrine.

This Court often recognizes the pertinence and value of 
an analysis of the intent of the framers of constitutional 
and statutory law in aid of their interpretation and applica­
tion.69

Accordingly, it is appropriate in reevaluating the “ sep­
arate but equal”  doctrine as enunciated in Plessy v. Fergu­
son to refer directly to the official statements of the men 
who were responsible for the drafting of the Fourteenth 
Amendment and the legislation passed shortly thereafter 
to implement it.

68 The brief on the merits of the Committee of Law Teachers
Against Segregation in Legal Education filed as amici curiae in this 
case does a careful and comprehensive analysis of the question. It is 
their conclusion that the framers of the Fourteenth Amendment meant 
to prohibit segregation. Tussman & ten Broek, supra note 2, at 342, 
356, et seq., indicate that they have reached the same conclusion. 
See also: (N ote), 49 Col. L. Rev. 629 (1949) to the same effect.
Needless to say we believe that Mr. Justice H ar la n ’s dissent in 
Plessy v. Ferguson was the correct approach to the question.

69 See, e. g., United States v. American Trucking Assn., 310 U. S. 
534; The Church of the Holy Trinity v. United States, 143 U. S. 457. 
See also: Frankfurter, Some Reflections on the Reading of Statutes, 
47 Col. L. Rev. 527 (1947).



55

It became clear shortly after the ratification of the 
Thirteenth Amendment that it was too limited in scope to 
insure that the Negro would be able to achieve the equality 
and freedom from discrimination which were among its 
major purposes.70 The Congress in 1866 set about com­
batting the so-called Black Codes enacted by the southern 
states, which limited the rights of Negroes to own property, 
institute law suits, testify in any proceedings, and imposed 
more severe penalties on Negroes than on whites for the 
same offenses. This legislative effort culminated in the 
Civil Rights Act of 1866, but in the process of its enact­
ment the Congress became involved in a complicated se­
mantical debate over the meaning of the term “ civil 
rights” . The bill itself emerged as a specific corrective 
only to certain named abuses and failed to resolve the gen­
eral problems of equality and segregation.71

Eventually, it became apparent through the debates on 
the Civil Rights Act of 1866 that a new constitutional 
amendment was necessary to eliminate all “ discrimination 
between citizens on account of race or color in civil 
rights” .72 To avoid the interpretative refinements of 
“ civil rights”  which had plagued the Congress, the more 
comprehensive “ equal protection of the laws”  was used 
as the key phrase for the statement of the basic principle.

Little can be found in the congressional debates relating 
to the Amendment itself which throws any light on the 
questions of interpretation here involved. The Amend­
ment passed both houses easily. But the fifth section of 
the Amendment authorized implementary legislation, and 
by the time the Amendment was ratified new waves of dis­
criminatory state legislation throughout the South required

70 Flack, The Adoption of the Fourteenth Amendment, Ch. 1 
(1908).

71 Id., pages 21, 25, 29.
72 Cong. Globe, 39th Cong., 1st Sess., 1290, 1293 (1866).



56

the 42nd Congress to face the task of shaping new practical 
statutory remedies. The extended debates of this Congress 
and of its successor, which finally carried through the pas­
sage of the Civil Eights Act of 1875,73 are of great value in 
ascertaining the contemporary views and the “ constitu­
tional intent”  of the men who drafted the Amendment.74 
The public statements of these men are particularly per­
suasive in respect to the “ separate but equal”  doctrine, 
for this question was clearly presented, extensively de­
bated, and conclusively resolved in these hearings. If 
Plessy v. Ferguson, supra, is the foundation of the theory 
of civil rights which holds that a Negro is afforded the 
equal protection of the laws if he gets merely a technical, 
segregated “ equality” , then it is highly relevant here to 
go behind that decision in order to demonstrate that the 
men who were responsible for the Fourteenth Amendment 
and its accompanying legislation expressly rejected the 
theory and all of its implications.

The hill sponsored by Senator Sumner of Massachu­
setts was primarily concerned with the prohibition of dis­
crimination in conveyances, inns, theatres and schools. By 
its language it was explicit that no segregation, no separa­
tion of these facilities was to he countenanced. It was 
pointed out many times that the bill did not permit the 
establishment of separate facilities even though they might 
be “ equal” .

Senator Sumner said:
“ Then comes the other excuse, which finds Equal­

ity in separation. Separate hotels, separate convey­
ances, separate theaters, separate schools, separate 
institutions of learning and science, separate 
churches, and separate cemeteries—these are the

73 The bill passed the Senate on February 27, 1875, by a vote of 
36 to 26, and was approved by the President on March 1st. See 
Flack, op. cit. supra note 70, at 277.

74 See Fairman and Morrison, supra note 46.



57

•artificial substitutes for Equality; and this is the 
contrivance by which a transcedent right, involving 
a transcendent duty, is evaded * * * Assuming what 
is most absurd to assume, and what is contradicted 
by all experience, that a substitute can be an equiva­
lent, it is so in form only and not in reality. Every 
such attempt is an indignity to the colored race, 
instance with the spirit of Slavery, and this decides 
its character. It is Slavery in its last appearance. ’ ’75

Senator Pease of Mississippi at a later date, shortly be­
fore the bill was passed in the 43rd Congress, states in un­
equivocal terms:

“ The main objection that has been brought for­
ward by the opponents of this bill is the objection 
growing out of mixed schools. * * * There has been 
a great revolution in public sentiment in the South 
during the last three or four years, and I believe 
that today a majority of the southern people are in 
favor of supporting, maintaining, and fostering a 
system of common education. # # # I believe that the 
people of the South so fully recognize this, that if this 
measure shall become a law, there is not a state south 
of the Mason and Dixon’s line that will abolish its 
school system. * * * I say that whenever a state shall 
legislate that the races shall be separated, and that 
legislation is based upon color or race, there is a dis­
tinction made it is a distinction the intent of which is 
to foster a commitment of slavery and to degrade 
him. The colored man understands and appreci­
ates his former condition; and when laws are passed 
that say that ‘ because you are a black man you shall 
have a separate school,’ he looks upon that, and 
justly, as tending to degrade him. There is no equal­
ity in that.

“  * # # because when this question is settled I 
want every college and every institution of learning 
in this broad land to be open to every citizen, that 
there shall be no discrimination. ’ ’ 76

75 Cong. Globe, 39th Cong., 1st Sess., 382, 383 (1865).
76 Cong. Globe, 43rd Cong., 1st Session, page 4153 (1874).



58

In the course of these discussions of the “ separate hut 
equal”  doctrine its proponents urged upon their colleagues 
various state court decisions which had followed it,, viz., 
Roberts v. Boston and State, Games v. McCann, supra. 
These cases were expressly rejected as unsound and incon­
sistent within the meaning and purpose of the equal protec­
tion clause.77 Yet these are the decisions which form the 
principal judicial foundation for this Court’s decision in 
Plessy v. Ferguson.

By a vote of 26 to 21 the Senate of the 42nd Congress 
concluded that “ separate but equal”  schools, if established 
under the aegis of the state or by force of state law, were a 
violation of the Fourteenth Amendment. This judgment, 
since it came from the men who best knew why the Amend­
ment was drafted and what they intended it to accom­
plish, should he highly persuasive. It should certainly cast 
doubt upon the soundness of the Plessy decision.

These Senators of 1874 and 1875 are among the most 
cogent and eloquent advocates of the petitioner’s cause in 
this Court.78 In rejecting the “ separate but equal”  theory,

77 See Cong. Globe, 42nd Cong., 2nd Sess. 3261 (1872); Cong. 
Globe, 43rd Cong., 1st Sess. 4081, 4082, 4116 (1874).

78 This is what the Bill meant to Senator Howe of Wisconsin, 
Cong. Globe, 43rd Cong., 1st Sess. 4147 (1874):

“  * * * the simple justice of the provisions of this bill is 
self-evident.

“ What are they? A  command is proposed that no citizen of 
the United States shall be excluded from the accommodations of 
inns, of public highways, of public schools, nor shall their remains 
be excluded from resting in public burial grounds notwithstanding 
they are black. That is all. A  national decree is proposed that a 
citizen shall have the right to travel along the public thorough­
fares if he pays his fare, and shall have a right to send his children 
to the public schools if he meets the charges, although he is not 
white. That is all. It lays not an ounce of weight upon any man 
of color but it lifts burdens from some. That is the bill.”



59

Senator Boutwell explained why the concept itself was a 
contradiction in terms, and a practical impossibility:

“  * # * To say, as is the construction placed upon 
so much of this bill as I propose to strike out, that 
equal facilities shall be given in different schools, is 
to rob your system of public instruction of that qual­
ity by which our people without regard to race or 
color, shall be assimilated in ideas, personal, poltical, 
and public, so that when they arrive at the period of 
manhood they shall act together upon public ques­
tions with ideas formed under the same influences 
and directed to the same general results; and there­
fore, I say, if it were possible, as in the large cities 
it is possible, to establish separate schools for black 
children and for white children, it is in the hig'hest 
degree inexpedient to tolerate such schools. * * * 
And inasmuch as we have in this country 4,000,000 
colored people, I assume that it is a public duty that 
they and the white people of the country with whom 
they are to be associated in public affairs shall be 
assimilated and made one in the fundamental idea 
of human equality. Therefore, where it would be 
possible to establish different schools, I am against it 
as a matter of public policy.

“ But throughout the larger part of the South it 
is not possible to establish separate schools for black 
children and for white children, that will furnish 
means of education, suited to the wants of either 
class; and therefore in all that region of the country 
it is a necessity that the schools shall be mixed in 
order that they shall be of sufficient size to make them 
useful in the highest degree; and it is also important 
that they should be mixed schools, in order that the 
prejudice which now pervades portions of our people 
shall he uprooted by the power of general taxa­
tion. ’ ’ 79

79 Cong. Rec. 4158, 43rd Cong., 1st Sess. (1874).



6 0

Senator Frelinghuysen searched the underlying princi­
ples of our government in replying to his opponents:

“ If it be asked what is the objection to classifica­
tion by race, separate schools for colored children, I 
reply, that question can best be answered by the per­
son who proposes it asking himself what would he 
the objection in his mind of his children being ex­
cluded from the public schools that he was taxed to 
support on account of their supposed inferiority of 
race.

“ The objection of such a law on our part is that 
it would be legislation in violation of the fundamental 
principles of the nation.

“ The objection to the law in its effect on society 
if that ‘ a community is seldom more just than its 
laws;’ and it would be perpetuating that lingering 
prejudice growing out of a race having been slaves 
which it is as much our duty to remove as it was to 
abolish slavery.

“ Then, too, we know that if we establish separate 
schools for colored people, those schools will he in­
ferior to those for the whites. The whites are and 
will be the dominant race and rule society. The value 
of the principle of equality in government is that 
thereby the strength insures to the benefit of the 
weak, the wealth of the rich to the relief of the poor, 
and the influence of the great to the protection of the 
lowly. It makes the fabric of society a unit, so that 
the humbler patrons cannot suffer without the more 
splendid parts being injured and defeated. This is 
protection to those who need it. And it is just that 
it should be so; for of what value is the wealth and 
talent and influence of the individual if you isolate 
bim from society? Great as he may be, he is the 
debtor to society. Let him pay.

“ Sir, if we did not intend to make the colored 
race full citizens, if we propose to place them under 
the ban of any legalized disability or inferiority, and



61

there to hold them, we should have left them 
slaves.” 80

One Senator prophesied that under the “ pretense of 
what is called equality”  the result would be to “ grind out 
every means of education that the colored man can have ’ ’.81 
This same fear was echoed by Mr. Justice H arlan in his 
dissenting opinion in Plessy v. Ferguson?2

The provision with respect to schools was finally deleted 
from the bill in the House, but this was done as a matter 
of policy and political expediency. The House merely chose 
to withhold criminal sanctions with respect to the main­
tenance of segregated schools—it neither approved such 
segregation nor did it hold that separate schools were per­
missible under the Fourteenth Amendment. It merely left 
this aspect of segregation and discrimination to the courts.

For purely practical reasons some of the representa­
tives felt that the Negro’s chances of obtaining good com­
mon schools would be better under the Court’s protection 
than under the proposed remedial legislation.83 Unfor­
tunately Plessy v. Ferguson infused the 14th Amendment 
with a meaning which was at odds with the intent of its 
framers.84

An historical analysis of the intent of those men of the 
43rd Congress, who drafted and molded the enforcement 
acts of the Fourteenth Amendment, clearly indicates that 
the constitutional hypothesis of “ separate but equal”  as

8°  j(j_ a£ 3452.
81 Cong. Rec.’ 4173, 43rd Cong., 1st Sess., Mr. Edwards of 

Vermont.
82 Plessy v. Ferguson, supra, at 552.
83 3 Cong. Rec. 997-998, 43rd Cong., 2d Sess. (1875).
84 Boudin, Truth and Fiction About the Fourteenth Amendment, 

16 N. Y. U. L. Q. Rev. 16, 75 (1938); Buck, The Road to Reunion 
(1937).



62

established in Plessy v. Ferguson, should not be extended 
to the field of education—particularly at its most vulnerable 
point—the professional level. We submit, therefore, that it 
should be overruled.

B. Even comparative physical equality is not possible under
a system of enforced segregation.

This Court has never held, as respondents infer, that 
there is an irrebuttable presumption of validity to segrega­
tion statutes. On the contrary, as we have already shown, 
this Court declared that governmental action which results 
in discrimination based upon race and color is violative 
of Constitutional guarantees in the absence of some over­
whelming public necessity, Oyama v. California, supra. 
This record is replete with evidence disclosing the discrim­
inatory consequences of the application of the “ separate 
but equal”  doctrine. Where the treatment accorded peti­
tioner is admittedly inferior to and different from that ac­
corded to other persons similarly situated, equality of such 
treatment can not be assumed, but must be affirmatively 
determined.

In the seventeen states—Alabama, Arkansas, Delaware, 
Florida, Georgia, Kentucky, Louisiana, Maryland, Missis­
sippi, Missouri, North Carolina, Oklahoma, South Carolina, 
Tennessee, Texas, Virginia, West Virginia and the District 
of Columbia—where segregation is practiced, it is a matter 
of public knowledge that the Negro schools are not equal 
to the white schools. This fact has been graphically dem­
onstrated in the appendix to our petition and brief for writ 
of certiorari.

But a word in summary needs to be said at this time. 
In those states there are 39 publicly supported institutions 
devoted to the higher education of the Negro, while there 
are 192 public colleges and universities for whites. Negroes



63

are approximately 22.3 per cent of the total southern popu­
lation, but they have 16.9 per cent of the total number of 
public institutions and comprise only 10.3 per cent of those 
benefiting by the existence of such schools. Only 5.5 per cent 
of all expenditures for public institutions in the South were 
for Negro colleges and universities.85 86

Southern Negroes constitute 7.7 per cent of the total 
population of the United States; southern whites 26.7 per 
cent. The South spends 22.3 per cent of the total national 
sum spent for institutions of higher learning. Negroes get
1.8 per cent of this amount, whereas whites receive 20.5 
per cent. Per capita expenditure for whites is $4.28; while 
that for Negroes is $1.32.®* If expenditures were equalized 
on a per capita basis, $19,000,000 more per year would be 
required in higher education alone.

Whereas 16 per cent of all white public intsitutions are 
accredited by the Association of American Universities,

85 See Hearings Before Subcommittee on Appropriations, House 
of Representatives, 80th Congress, February, 1947, for testimony 
of Dr. Mordecai W . Johnson, President of Howard University, where 
he said: “ In states which maintain the segregated system of educa­
tion there are about $137,000,000 annually spent on higher educa­
tion. Of this sum $126,541,795 (including $86,000,000 of public 
funds) is spent on institutions for white youth only; from these 
institutions Negroes are rigidly excluded. Only $10,500,000 touches 
Negroes in any way; in fact, as far as state supported schools are 
concerned, less than $5,000,000 directly touches Negroes * * * 
The amount of money spent on higher education by the state and 
federal government for Negroes within these states is less than the 
budget of the University of Louisiana (in fact only sixty-five per 
cent of the budget) which is maintained for a little over 1,000,000 
people in Louisiana. That is one index; but the most serious index 
is this: that this little money is spread over so wide an area and in 
such a way that in no one of these states is there anything approach­
ing a first-class university opportunity available to Negroes.”

86 The Educational Directory, 1946-47, Vol. I ll, page 7, 16th 
Census: 1940, Population, 2nd Series, U. S. Summary, page 47; 
The Journal of Negro Education, Summer, 1947, page 468; U. S. 
Office of Education, Statistics of Higher Education, 1943-44, page 70.



64

only 5.1 per cent of all Negro public institutions are simi­
larly accredited. Of all white public institutions 25.6 per 
cent are accredited only by state departments of education 
while 33.3 per cent of the Negro institutions are similarly 
accredited.87 There are 18 law schools, 15 medical schools, 
5 colleges of dentistry, 26 schools of engineering, and 13 
schools of pharmacy for whites which are accredited. Ex­
cept for the schools and colleges of Howard University, 
which is federally supported, there is not one Negro publicly 
supported graduate or professional school in the country 
which has received full accreditation.88

“ Whatever other inferences may be drawn from the 
facts * * * one of the most important and inevitable con­
clusions is that Negroes in the separate school systems of 
the states which require racial segregation have been the 
victims of gross discrimination in the provision of educa­
tional opportunities * * V ’ 89 The evidence is conclusive 
that at the graduate and professional school level, there is 
absolutely no comparative physical equality between the 
institutions available for whites and those for Negroes.90 
Whatever virtues the “ separate but equal”  doctrine may

87 The Educational Directory, 1946-7.
88 The Accrediting Agencies; Law— The American Bar Associa­

tion ; Medicine— The American Medical Association; Dentistry—The 
Council of Dental Education of the American Dental Association; 
Engineering— The Engineers Council for Professional Development; 
Pharmacy— The American Council on Pharmaceutical Education, 
Inc. The states included in this listing are: Alabama, Arkansas, 
Delaware, District of Columbia, Florida, Georgia, Kentucky, 
Louisiana, Maryland, Mississippi, Missouri, North Carolina, Okla­
homa, South Carolina, Tennessee, Texas, Virginia and West Vir­
ginia. The Law School for Negroes of Lincoln University, Missouri, 
has been provisionally accredited by the American Bar Association.

89 Thompson, 16 The Journal of Negro Education, 265 (1947).
90 A  Report of Elmo Roper for the Committee on a Study of 

Discriminations in College Admissions, Factors Affecting the Ad­
mission of High School Seniors to College (1949)— a comprehensive 
study showing the extent of discrimination in college admissions.



65

have in theory, in application it has inevitably resulted in 
discriminatory treatment. As such that doctrine denies 
the equal protection of the laws. Yick Wo v. Hopkins, 118 
U. S. 356.

These facts lead to the conclusion that equality, within 
the meaning of the Fourteenth Amendment, can never be 
realized under a system of segregation. As one eminent 
authority, Dr. Alain Locke, stated:

“ In the first place few if any communities can 
afford the additional expense of entirely equal ac­
commodations, and it would require as much and the 
same kind of effort as the removal of the social bias 
of the community and the reform of its conscience 
to secure general admission of the principle of com­
plete equity as to secure the abolition of the dual 
system. Up to a certain point, communities will pay 
a price for prejudice, but not such an exhorbitant 
price as complete economic equality requires. As­
suming that such parity could be reached and con­
sistently maintained, the moral damage of the situ­
ation of discrimination would still render the situ­
ation intolerable. But the argument can and will 
doubtless be settled or fought out on the practical 
plane of the school budget. Whenever the standards 
of Negro public schools are raised to the point that 
the budget expense approaches parity, there will be 
less resistance to educational segregation, for one of 
the main but concealed reasons for discrimination 
lodges in the idea that the Negro is not entitled to 
the same educational facilities as the white com­
munity.”  91

In actuality, states operating under the “ separate but 
equal”  doctrine have always attempted to prevent this 
Court from reviewing its consequences. See Missouri ex rel.

91 Locke, “ Dilemma of Segregation” , 4 Journal of Negro Educa­
tion, 407-409.



66

Gaines v. Canada, and Sipuel v. Board of Regents; See also 
Brief of respondents in opposition to petition for certiorari. 
In addition, the doctrine has been misconstrued as raising 
a procedural barrier to test the constitutionality of separate 
schools (R. 445). The records in the cases eventually re­
viewed here have uniformly disclosed a total disregard of 
even the minimum requirements of the “ separate but equal”  
doctrine. See Gaines case and Sipuel case, supra.92

In all cases where the Court has been presented with 
facts which purported to demonstrate that equality had 
been achieved in the spacial separation of the races, the 
Court has declared that the equal protection clause has been 
violated. Buchanan v. Warley, supra; Shelley v. Kraemer, 
supra.

Since Plessy v. Ferguson, we have fought two World 
Wars for the preservation and maintenance of democracy, 
and have become a signatory of the United Nations Charter 
which provides that there shall be no discrimination based 
on race, creed or color.93 This Court now recognizes and 
accepts as one of its primary responsibilities—the protec­
tion of minority groups against governmental discrimina­
tion based upon considerations of race or color. Hira- 
bayashi v. United States; Shelley v. Kraemer; Takahashi 
v. Fish and Game Commission; OyamaY. California.

Whatever reasons may have caused the Court to adopt 
the “ separate but equal”  formula in Plessy v. Ferguson, 
the whole history of its application conclusively proves that

92 In neither the Gaines case nor the Sipuel case was there any 
provision at all made for the legal education of Negroes, even in a 
segregated institution, until the decision by this Court. In this case, 
although respondents have relied upon the “ separate but equal” doc­
trine ab initio, no efforts were made to offer petitioner any type of 
legal facilities until almost two years after the institution of this 
action.

93 Articles 55 and 56.



67

it has not, does not and cannot provide the equal protection 
which the 14th Amendment sought to secure.

The fact that physical equality has not resulted, when 
the “ separate but equal”  doctrine has been applied, is no 
accident. Segregation is grounded in a belief in Negro 
inferiority. Eecognizing this fact, social science experts 
are in universal agreement that segregation and racial dis­
crimination are necessarily one and the same.

IV.

This record discloses the inevitability of discrimina­
tion under the “separate but equal” formula.

A. Negro and white college and graduate school facilities
in Texas.

Dr. Charles H. Thompson, an authority in education 
whose unexcelled qualifications as an expert witness are 
amply set forth in the record (R. 229-233), made a docu­
mented, scientific study of the comparative educational 
facilities for Negroes and whites in Texas at petitioner’s 
request (R. 233-4). Analyzing the situation on the basis 
of the best recognized criteria, Dr. Thompson found, in sub­
stance, as follows:

1. Physical Facilities.

The combined asset value of the plant facilities of the 
thirteen white state-supported schools above the high school 
level was in excess of $72,000,000; that of Prairie View, the 
only Negro school of “ higher learning” , was slightly more 
than $4,000,000 (R. 239 and 241). This is less than half of 
the proportionate amount which would be allocated on the 
basis of the Negro population of the state. Although we 
believe such a standard to be as pernicious as the “ sepa-



68

rate but equal”  doctrine itself, it would seem that this at 
least would be the minimum requirement of the doctrine. 
On a per capita basis, $28.66 was invested in plant assets 
for every white person; $6.40 for every Negro (R. 241). 
The per student appropriation at Prairie View is much 
less than that found to exist at a small white teachers col­
lege (R. 249). Texas provided through state-supported 
four-year institutions for 66.8 per cent of its white college 
students, but for only 31.8 per cent of the Negro students 
(R. 252).

2. Current Expenditures.

In 1943-44, $11,071,490 in state, county and district funds 
was appropriated for higher education in Texas. The 
amount of $10,858,018 was appropriated to white institu­
tions, i. e., $1.98 per capita to every white citizen. The sum 
of $213,472 was appropriated to Negro schools, or 23 cents 
per capita. The white institutions thus received 8.06 times 
more funds than were allocated to the Negro institutions 
(R. 246).

3 . Curriculum.

In Texas there are 106 undergraduate fields of specializa­
tion in the white state-supported institutions, and only 49 
in the Negro institution, Prairie View (R. 255). Texas
A. & M., a white state-supported institution, has 45 depart­
ments of specialization as compared with 13 at Prairie View, 
a ratio of more than 3 to 1. On the other hand, a number 
of trade courses on the high school level are given at the 
Negro university, Prairie View, such as mattress making, 
auto mechanics, carpeting, laundering, and dry cleaning 
(R. 255). These skills are usually taught in high schools or 
vocational schools of secondary school rank (R. 356). On 
the graduate level, the investigation reveals that a total of



69

159 Negroes received graduate degrees during approximately 
a five-year period, as contrasted with some 3,000 white stu­
dents (R. 257). Moreover, the range of subjects in white 
graduate schools is considerably wider (R. 257). Dr. 
Thompson stated:

“ The National Survey of Higher Education for 
Negroes, to which I have referred, a U. S. Office [of 
Education] publication, indicated in 1942 that the 
Texas state supported higher institutions for whites 
offered graduate work in 65 fields and 5 for 
Negroes”  (R. 257).

The University of Texas, at the present time, gives ten 
different types of graduate degrees in forty fields. Prairie 
View gives a Master’s Degree in thirteen fields (R. 257). 
White institutions gave 212 doctorates (R. 258). No Negro 
institution is qualified to give any degrees at this level.

4. Faculty.

In comparing the faculty of white and Negro schools 
of higher learning in Texas, Dr. Thompson stated that two 
key factors must be considered, namely, salary and train­
ing (R. 261). In order to attract and retain a good teach­
ing staff, faculty members must be paid good salaries and 
find the working conditions satisfactory. Dr. Thompson’s 
study disclosed that twenty-five teachers were lost to other 
institutions within the past five years because of the in­
ability of Prairie View to match their salary offers (R. 262). 
It further revealed that the median salary of a full pro­
fessor at Prairie View is $2,025, while the lowest salary 
paid to a full professor in a state-supported white college 
is $2,700 (R. 262).

As to training, the picture is the same. In 1945-46, only 
9.3 per cent of the faculty members of Prairie View had 
degrees on the doctorate level (R. 263).



70

5. Library.

The University of Texas Library had 750,974 titles. 
Prairie View had 25,000. Even a white college, such as 
East State Teachers College with a smaller student body 
(1,205 students as compared to Prairie View’s 1,619), had 
81,974 volumes in 1945-46 (R. 264). The library of the 
Negro College was found by an impartial survey committee 
to be inadequate even for undergraduates, not to speak of 
its complete inability to meet the needs of graduate 
students (R. 265).

6 . Standing in the educational w orld and com m unity.

Prairie View is not accredited by The Association of 
American Universities nor by any of the national pro­
fessional councils (R. 266). It is regarded as a “ poor 
college” ; it is not a “ real university”  (R. 267). Three 
white state institutions are accredited by The Association 
of American Universities (R. 266).

A Negro student at Prairie View cannot get the type of 
undergraduate or graduate education that is available to 
the white student of the state. Since this case was started, 
Texas has established at Houston the University for 
Negroes. The disparities which Dr. Thompson’s study re­
vealed may not now be accurate as to specific detail. It is 
submitted, however, that the picture remains the same 
although its contours may have varied somewhat.

In the face of these facts Texas cannot now be heard to 
say that it has provided “ separate but equal”  college and 
graduate school facilities for Negroes. Even the testimony 
for respondents concedes this to be true.

Dean Pettinger, a witness for respondents who has 
studied educational facilities for Negro and white students



71

in Texas for thirty years, stated: “ I am unable to think 
for the moment of [any] colored institutions and white 
institutions which do have equal facilities with which I have 
been associated”  (R. 333).

B. The two law schools compared.
The picture at the law school level is no brighter. When 

petitioner applied for a legal education the only law school 
in existence maintained by the State of Texas was the one 
at the University of Texas (R. 425).

The University of Texas has been in existence since the 
last century. The law school has been in existence for more 
than fifty years and is recognized and accredited by every 
association in the field (R. 90-91). The Negro school had 
just been opened in March, 1947 and was not accredited by 
any agency (R. 25, 96).

1. Physical plant.

The proposed Negro law school was to be set up in the 
basement94 of a building in downtown Austin consisting of 
three rooms of moderate size, one small room and toilet 
facilities (R. 36). There were no private offices for either 
the members of the faculty or the dean. The space for this 
law school had been leased for a period from March to Au­
gust 31, 1947 at $125 a month, and the authorities were 
negotiating for a new lease after that period (R. 41). It 
was freely admitted that “ there is no fair comparison in 
monetary value”  between the two schools (R. 43). There 
was no assurance as to where the proposed law school 
would be located after August 31st, and it was not even 
certain as to what city it would be in after August 31st 
(R. 52-53).

94 Pictures of the building of the Law School at the University of 
Texas and the basement quarters of the so-called Negro Law School 
appear in the record at pages 385-387 and 389.



72

2 . Library.

While the law school at the University of Texas had a 
well-rounded library of some 65,000 volumes (R. 133), the 
proposed Negro school had only a few books, mostly case 
books for use of first-year students (R. 21-22). However, 
the students at the proposed law school for Negroes had 
access only to the law library in the state capitol directly 
across the street, a right in common with all other citizens 
of the State of Texas (R. 45). A  library of approximately 
10,000 volumes had been requisitioned on February 25, 1947 
(R. 40), but was not available for use at the time of the 
trial of this case (R. 44). The University of Texas law 
school had a full-time, qualified and recognized law librarian 
with two assistants (R. 139). The Negro law school had 
neither librarian nor assistant librarians (R. 74, 80, 128).

It was admitted that the library at the state capitol, a 
typical court library and not a teaching library, was not 
equal to the one at the University of Texas, and did not meet 
the standards of the Association of American Law Schools 
(R. 134, 138, 145). It was also admitted that even if the 
requisitioned books were actually obtained the library 
would not then be equal to the library already in existence 
at the law school of the University of Texas (R. 151).

3 . Faculty.

The University of Texas Law School has a faculty con­
sisting of sixteen full-time and three part-time professors 
(R. 369-371). The proposed faculty for the Negro school 
was to consist of three professors from the University of 
Texas who were to teach classes at the Negro school in ad­
dition to their regular schedule at the University of Texas 
(R. 59, 84, 87).95 The comparative value in the difference be-

95 It was also shown that offices for the dean and faculty members 
involved were to remain at the University of Texas (R . 46-47).



73

tween full-time and part-time law school professors was 
freely acknowledged, and it was admitted that the pro­
posed “ faculty”  did not meet the standards of the Associ­
ation of American Law Schools (R. 59, 91-92).

4 . Student body.

There were approximately eight hundred fifty students 
at the law school of the University of Texas (R. 76). From 
the record it appears that all qualified students other than 
Negroes were admitted. There were no students at the 
proposed Negro school at the date of opening nor at the 
time of the trial (R. 162). Although several Negroes had 
made inquiry concerning the school, none had applied for 
admission (R. 162). If petitioner had entered this school 
he would have been the only student.

The law school of the University of Texas had a moot 
court, legal aid clinic, law review, a chapter of Order of the 
Coif, and a scholarship fund (R. 102-105). None of these 
were present or possible in the proposed Negro law school, 
and Charles T. McCormick, dean of the two law schools,, 
testified that he did not consider these to be factors material 
to a legal education but rather, that they were ‘ ‘ extraneous 
matters”  (R. 106).

Thus Texas has provided all the facilities at the Uni­
versity of Texas which are essential to achieving the objec­
tives of a modern law school, and the Negro law school can 
in no way be said to be equal or substantially equal to 
this school.

When we examine the concept “ equally”  semantically, 
we find that it is a purely relative term. One cannot com­
pare a state-supported law school, whose student body is 
composed solely of Negroes, to a state-supported law school 
whose student body includes various groups (with the ex-



74

ception of Negroes)-—whose study of the law is benefitted 
by a mutual interchange of ideas and attitudes. Even if, 
for the sake of argument, the physical facilities offered at 
both schools were the same, “ not even the most mathe­
matically precise equality of segregated institutions can 
properly be considered equality under the law ’ ’,96

It is no accident, no coincidence, that whenever segre­
gation is decreed and enforced, you will find inequality. 
The facts are, as we have indicated, that in the state of 
Texas as well as in the other 16 states and the District of 
Columbia, discrimination and inequality in education, fol­
low inevitably and inexorably from the mere fact of segre­
gation. We have demonstrated above that the psychological 
effects of a segregated professional education are harm­
ful to the segregator and segregatee alike, because in addi­
tion to the inferior educational opportunities offered at the 
“ separate”  school—the very fact of separation lessens 
their value or “ social location” .

In regard to the measurable physical aspects of profes­
sional education, the record has shown that gross inequali­
ties exist whenever segregation is practiced. Similarly, 
social scientists have attested to the psychological and 
social ills which result from enforced racial segrega­
tion.97 The results of authoritative studies prepared by 
educators, psychologists, legal scholars and social scientists 
are all in agreement with petitioner’s contentions that: 
there can fee no separate equality.

96 Report of the President’s Committee on Civil Rights, To Secure 
These Rights 82 (1947).

97 For an exhaustive study of a cross-section of veterans living in
a large American city with regard to how environmental factors are 
associated with hostility towards minority groups see: Bettleheim
and Janowitz, Dynamics of Prejudice, A  Psychological and Socio­
logical Study of Veterans (1950) passim.



75

Conclusion

Historically, the prevailing ideology of our democracy 
has been one of complete equality. The basic law of our 
land, as crystallized in our Constitution, rejects any dis­
tinctions made by government on the basis of race, creed, 
or color. This concept of true equality has become synony­
mous with what is generally defined as “ the American 
Creed” . Moreover, this creed has become a symbol of 
hope for people everywhere.

In petitioner’s state of Texas, the educational facilities 
available to him are governed by the “ separate but equal”  
doctrine. He is asked to believe, in spite of the overwhelm­
ing evidence to the contrary, that he can secure “ equal”  
educational opportunities in a school set apart from his 
fellow citizens. For him, the American Creed is but an 
attractive idea—not a reality.

Education is not a passive concept. The acquisition of 
information and special skills, transmitted through the 
medium of education, enables a citizen to live intelligently 
as well as productively. To the extent that petitioner is 
in any way denied the same educational facilities available 
to other citizens of his state, both he and his fellow citizens 
are limited in their opportunity to fully participate in our 
democratic way of life. Petitioner contends that a com­
plete and proper education cannot be attained under the 
“ separate but equal”  doctrine of Plessy v. Ferguson.



76

W h e r e f o r e , it is respectfully submitted that the judg­
ment of the Court below should be reversed.

U. S im p s o n  T a t e , 
F r a n k l in  H. W il l ia m s , 

Of Counsel.

R o b e r t  L. C a r t e r ,
W . J .  D u r h a m ,
W il l ia m  R. M in g , J r ., 
J a m e s  M . N a b r it ,
T h u rg o o d  M a r s h a l l ,

Attorneys for Petitioner.

A n n e t t e  H. P e y s e r , 
Research Consultant.

February 25, 1950.

p 212 [ 7 6 9 7 ]

Lawyers Press, I nc., 165 William St., N. Y . C. 7 ; ’Phone: BEekman 3-2300







NUMBER 9684

IN THE

Court o f Civil Appeals
For the Third Supreme Judicial District of Texas, 

at Austin, Texas

HEMAN MARION SWEATT,
Appellant,

versus

THEOPHILUS SHICKEL PAINTER, ET AL.,
Appellees,

APPEALED FROM THE DISTRICT COURT OP TRAVIS COUNTY

BRIEF FOR APPELLANT

W. J. D u r h a m  of Dallas 
T h urg o o d  M a r s h a l l  of New York 
Attorneys for Appellant.





I N D E X

PAGE

Statement of the Nature of the Case_________ __1

Points Upon Which the Appeal is Predicated_____  2

Preliminary Statement ______________________    3

First Point—The Court erred in sustaining appel­
lees’ special exception to allegation 3 of appel­
lant’s second supplemental petition. (Re-stated) 5

Statement Under First Point_________________  5

Authorities Listed __________________________  7

Argument and Authorities Discussed__________  7

Second Point—The Trial Court erred in excluding 
the testimony of the witness, Dr. Charles H. 
Thompson, with reference to the quantity and 
quality of education offered at the universities 
and colleges, other than Prairie View College, 
maintained by the State of Texas (S. F. beginning 
with the last question on p. 387 to p. 469, inclu­
sive). (Re-stated) ___________ ’______________  10

Statement Under Second Point ______ ------------  10

Authorities Listed __-____________________ ___  10

Argument and Authorities Discussed--------------  11



11

PAGE

Third Point—The Court erred in excluding the evi­
dence of the appellant as to the admission of 
Donald Murray to the law school of the University 
of Maryland and the results thereof in a situa­
tion analogous to the instant case, as shown in 
appellant’s bill of exception, as fully set out (8.
F. pp. 478-482). (Ee-stated) __________________  14

Statement Under Third Point_________________  14

Argument ______________________________L____ 16

Fourth Point—The Court erred in holding that the 
proposal of the State to establish a racially seg­
regated law school afforded the equality required 
by the equal protection clause of the Fourteenth 
Amendment to the Constitution of the United 
States and thus justified the denial of appellant’s 
petition for admission to the law school of the
University of Texas. (Re-stated) ______________ 16

Statement Under Fourth Point __________ .1___  16

Argument and Authorities Listed _____________ 20

I Courts have invalidated racial classifications 
imposed by states in a great variety of situa­
tions as denials of equal protection of the law 20

II The doctrine of racially “ separate but equal”  
public facilities is merely a constitutional 
hypothesis which has no application where 
racial segregation is shown to be inconsistent 
with equality _____________________________ 24



Ill

III The demonstration in this record that raci­
ally separate schools in fact and inevitably 
deny the equality required by the Fourteenth 
Amendment, precludes the application of any 
“ separate but equal”  doctrine in the field of

PAGE

public education and in the circumstances of 
this case _________________________1______  36

A. The law school set up by appellees does
not meet the requirements of the Four­
teenth Amendment___________________  36

B. The law school set up by appellees cannot
meet the requirements of the Fourteenth 
Amendment _______.______________ -___  40

C. The function of a state-supported law
school_____ i_________________________  43

D. The expert testimony introduced at the 
trial establishes that there is no rational 
justification for segregation in profes­
sional education and that substantial dis­
crimination is a necessary consequence of 
any separation of professional students
on the basis of color_______________— 49

Conclusion ____________________________________  63



Table of Cases
PAGE

Aiken v. Woodward (Tex. Civ. App.), 241 S. W. 1117 3
Alston v. School Board, 112 F. (2d) 992__.___________ 21
Brown v. Mississippi, 297 U. S. 278 ______________ 21
Buchanan v. Warley, 245 U. S. 60_________________ 21
Carter v. Texas, 177 U. S. 442 ___________________  21
Chambers v. Florida, 309 U. S. 227 _______________  21
Cummings v. Richmond County Board of Educa­

tion, 175 U. S. 528 ___ _______________________  33
Elmore v. Rice, et al., Unreported (U. S. D. C. E. D.

So. C.) 7/12/47 ______________________________  24
Gong Lum v. Rice, 275 U. S. 78___ _____________ ____  34
Harmon v. Tyler, 273 U. S. 668___________.'______ _ 21
Hill v. Texas, 316 U. S. 400______________________  21
Hirabayashi v. U. S., 320 U. S. 8 1 _______________31, 32
Lane v. Wilson, 307 U. S. 268 ____________________  23
Missouri ex rel. Gaines v. Canada, 305 U. S. 337 ____,3, 34
Morgan v. Virginia, 328 U. S. 373 ________________ 25
Newman, Ex parte, 14 Wall 132, 20 L. Ed. 877_____  3
Norris v. Alabama, 294 U. S. 587 ____ ____________  21
Panhandle Grain & Elevator Co. v. Dowling, 247

S. W. 873 ________ ______________________ ;_____ 11
Pearson v. Murray, 169 Md. 478, 182 A. 540 _______  3
Pierce v. Allen, et al., 278 S. W. 453 _______ ______ 7,9
Pierre v. Louisiana, 306 U. S. 354 _________________  21
Plessy v. Ferguson, 163 U. S. 537 ____________ . 29, 30,33
Railway Mail Association v. Corsi, 326 U. S. 88___  22
Richmond v. Deans, 281 U. S. 704 ___________ ...___  21
Ridgeway v. City of Ft. Worth, 243 S. W. 704___ ___  3
Roberts v. Boston, 5 Cush. 198___________________  30

iv



V

San Antonio Traction Co. v. Higdon, 123 S. W.
PAGE

732 ________________________________________10,12
Smith v. Fort, 58 S. W. (2d) 1080 ________________  7
Smith v. Texas, 311 U. S. 128_______________ ____ _ 21
Standifer v. Bond Hardware Co., 94 S. W. 144____  7
Steele v. L. N. R. R. Co., 323 IJ. S. 192__________ 33
Strauder v. W. Va., 100 U. S. 303, 306, 307, 308 ___ 26, 28
Ward v. Flood, 48 Cal. 36____ ___________________  3
Ward v. Texas, 316 U. S. 547 _________________ __  21
Ware v. Schaeffer, et al., 29 S. W. 756 ___________  11
Wertzman, et ux. v. Lee, 262 S. W. 859 ___________  7
White v. Texas, 309 U. S. 631___________________  21

Authorities Cited

American Jurisprudence 35, Sec. 377, p. 115_______  3
American Teachers Association Study on The Black 

and White of Rejections for Military Service 
(1944) ______________________________________ 52

Ballantine, H. W., The Place In Legal Education 
of Evening and Correspondence Law Schools, 4
Am. Law School Rev. 369 (1918)___________  39. 42

Boyer, Smaller Law Schools: Factors Affecting 
Their Methods and Objectives, 20 Oregon Law
Rev. 281 (1941)_________________________ 38,42,44

Brown, Esther Lucile, Lawyers and the Promotion 
of Justice (1938)________________ 1__________ 42, 46

Cantril, IJ., The Psychology of Social Movements
(1941) _______ /_________________________ ___  51

Chairman’s Address, ABA Section on Legal Edu­
cation, 1 Am. Law School Rev. 337 (1905)_____  48

Clark, Contrast: The Full Time Approved Law 
School Compared With The Unapproved Evening
School, 20 ABA Journal 548 (1934)________   42

Clark, W. W., Los Angeles Negro Children, Educa­
tional Research Bulletin (1923)__________    52



V I

PAGE

Dunbar, Charles E., Address before the AALS on the 
ABA Program in the Field of Legal Education 
and Admission to the Bar and the Part-Time 
School Problem, Handbook, A. A. L. S. (1939)_ 48

Horack, Law Schools of Today and Tomorrow, 6 
Am. Law School Rev. 658 (1927)_____________38,42

Johnson, Charles S., Patterns Negro Segregation
(1943) ______________________________________  50

Klineberg, Otto, Negro Intelligence and Selective 
Migration (1935)  52

Mangum, Charles S., Jr., The Legal Status of the
Negro (1940) ______________      50

Maxwell, Lawrence, Jr., Chairman’s Address, Sec­
tion of Legal Education of the ABA, 1 Am. Law
School Rev. 337 (1905) _ ___________    42

McCormick, C. T., The Place and Future of the State
University Law School, 24 N. C. Law Rev. 441__  44

McGovney, Racial Residential Segregation by State 
Court Enforcement of Restrictive Agreements, 
Covenants or Conditions in Deeds is Unconsti­
tutional, 33 Cal. Law Rev. 5 (1945)_______ A___  53

McWilliams, Carey, Race Discrimination and the 
Law— S cience  an d  S o cie ty , Vol. IX No. 1 (1945) 50 

Myrdal, Gunnar, An American Dilemma (1944)_„27, 50,51
Peterson & Lanier, Studies in the Comparative Abili­

ties of Whites and Negroes— M e n t a l  M easu re­
m e n t — M o n og k aph s , 5 :1-156, 1929_____________  52

President’s Address—17th Annual Meeting AALS,
4 Am. Law School Rev. 337 (1919)_____________ 48

Reed, A. Z., Present Day Law Schools (1928)_____  42
Reed, A. Z., Social Desirability of Evening or Part 

Time Law Schools, 7 Am. Law School Rev. 198
(1931) _____________________________ ________ 42,46

Report of the 36th Annual Meeting AALS, 9 Am. 
Law School Rev. 233 (1938), Consolidation of 
Legal Education in Dallas___ ____________ _____38,47



Vll

Snyder, The Function of the Night Law School, 7 
Am. Law School Review 827 (1933)___________  42

Stone, Harlan F., Address, 17th Annual Meeting 
AALS, 4 Am. Law School Rev. 483 (1919)_____  42

Storey, Progress in Legal Education, Texas Bar 
Journal, Vol. 1, No. 5 (1938)____________ _____ 38,48

Texas Constitution, Sec. 7, Art. 7________________  4
Thompson, Charles H., Some Critical Aspects of the 

Problem of the Higher and Professional Educa­
tion for Negroes— J ournal, of N egro E ducation  
(Fall 1945) _________________________________  60

Townes, John C., Organization and Operation of a 
Law School, 2 Am. Law School Review 436_...— 39

University of Texas Publication—No. 4529, August 
1, 1945, School of Law_______________ ________  37

Vance, The Function of the State-Supported Law 
School, 3 Am. Law School Rev. 409 (1914)-------- 42, 44

Weltfish, G-ene, Causes of Group Antagonism—J our­
n a l  of S ocial I ssues, Vol. 1__________________

PAGE

51





NUMBER 9684

IN THE

Court o f Civil Appeals
For the Third Supreme Judicial District of Texas, 

at Austin, Texas

H e m a n  M ario n  S w e a t t , Appellant, 
versus

T h e o p h il u s  S h ic k e l  P a in te r , et al., Appellees.

APPEALED PROM THE DISTRICT COURT OP TRAVIS COUNTY

BRIEF FOR APPELLANT

Statement of the Nature of the Case

This is an action in mandamus. Heman Marion 
Sweatt, appellant, on May 16, 1946, filed an application 
for a writ of mandamus in the 126th District Court of 
Travis County, Texas, against the members of the Board 
of Regents of the University of Texas, the acting Presi­
dent, the Dean of the School of Law and the Registrar 
of said University. The application for mandamus al­
leged that appellant was fully qualified for admission to 
the School of Law of the University of Texas, had duly 
applied for admission and had been refused admission 
solely because of his race or color in violation of the



2

Constitution and laws of the United States and of the 
State of Texas. On June 26, 1946 the Court entered an 
order that the action of appellees in denying admission 
to the appellant was a denial of appellant’s constitutional 
right to the equal protection of the laws, but issuance of 
the writ1 was stayed for six months to permit the State 
of Texas to establish a separate law school for Negroes 
substantially equivalent to the one at the University of 
Texas. On December 17, 1946, the Court below denied 
the writ of mandamus. To the judgment, appellant ex­
cepted and gave notice of appeal. The Court, on March 
26,1947, set aside the judgment of the Trial Court and re­
manded the cause generally. The case was then tried in 
the Court sitting without a jury, and a final judgment 
was rendered against appellant denying the application 
for writ of mandamus and taxing the cost against appel­
lant. From this judgment appellant now appeals.

POINTS UPON WHICH THE APPEAL IS 
PREDICATED

First Point: The error of the Court in sustaining 
appellees’ special exception to allegation 3 of appel­
lant’s second supplemental petition.

Second Point: The error of the Court in exclud­
ing the testimony of the witness, Dr. Charles H. 
Thompson, with reference to the quantity and quality 
of education offered at the universities and colleges, 
other than Prairie View College, maintained by the 
State of Texas (S. F. beginning with the last ques­
tion on p. 387 to p. 469, inclusive). (Re-stated)



3

Third Point: The error of the Court in exclud­
ing the evidence of the appellant as to the admission 
of Donald Murray to the law school of the University 
of Maryland and the results thereof in a situation 
analogous to the instant case, as shown in appellant’s 
bill of exception, as fully set out (S. F. pp. 478-482).

Fourth Point: The error of the Court in holding
that the proposal of the State to establish a racially 
segregated law school afforded the equality required 
by the equal protection clause of the Fourteenth 
Amendment to the Constitution of the United States 
and thus justified the denial of appellant’s petition 
for admission to the law school of the University of 
Texas.

Preliminary Statement

The appellant possesses all of the academic qualifi­
cations for admission to the law school (S. F. 265). This 
established a prima facie case for the issuance of the 
writ of mandamus.1 The burden of proof thereupon 
shifted to appellees to vindicate their conduct.2 This 
well recognized rule of procedure is required by Texas 
courts.3

1 Missouri ex rel. Gaines v. Canada, 305 U. S. 337 (1938); 
Pearson v. Murray, 169 Md. 478, 182 A. 540 (1936); Ward v. 
Flood, 48 Cal. 36 (1874).

2 35 Am. Jur. Sec. 377, at 115, “ . .  . Where, however, [in man­
damus proceedings] the right and duty appears, the burden of 
proving matter set up by way of excuse for failure to act, or of 
justifying such failure to act, rests upon the respondent or defen­
dant.” To the same effect see 38 C. J. Sec. 671 at 915; Ex partê  
Neuman, 14 Wall 152, 20 L. Ed. 877 (1871); see also Missouri 
ex rel. Gaines v. Canada, supra; Pearson v. Murray, supra.

3 Ridgeway v. City of Ft. Worth, 243 S. W . 704 (1922); Aiken 
v. Woodward (Tex. Civ. App.), 241 S. W. 1117 (1922).



4

The appellant was refused admission to the law 
school solely because he was a Negro (S. F. 70, 144, 265). 
Had appellant been a member of any other racial group 
there is no question that he would have been admitted 
to the law school.

The appellees in refusing admission of appellant to 
the law school claimed to be acting pursuant to the Con­
stitution and laws of the State of Texas, specifically 
Section 7, Article 7 of the Constitution of Texas (S. F. 
70).4

The entire defense of appellees is based upon this 
constitutional provision. Although the constitutionality 
of the separate school laws of Texas was directly in issue 
as a result of the pleadings in the case and the evidence 
presented at the trial, appellees made no effort whatso­
ever to support the validity of these statutes and obvi­
ously have relied solely on a presumption of constitu­
tionality.

The Trial Court, however, denied the petition for a 
writ of mandamus on the grounds that a separate law 
school for Negroes offering “ substantially equal” 5 facili­
ties had been established and that “ the constitutional 
right of the State to provide equal educational oppor­
tunities in separate schools”  was “ well established and 
long recognized by the highest State and Federal Courts.”

4 Section 7 of Article 7 of the Constitution of Texas provides: 
“ Separate schools shall be provided for the white and colored chil­
dren and impartial provision shall be made for both.”

5 The decision of the Trial Court first appealed from was based 
upon a theory of “ substantial”  equality. Despite the reversal of 
that decision the Trial Court continued in the belief that “ substan­
tial” equality meets the requirements of the Fourteenth Amendment 
and thereby ignores both the true meaning of equality and the 
purpose of the Fourteenth Amendment.



5

The record in the instant case for the first time pre­
sents testimony and documentary evidence clearly estab­
lishing that:

(1) There is no rational basis for racial classifi­
cation for school purposes.

(2) Public schools, “ separate but equal”  in theory 
are in fact and in practical administration 
consistently unequal and discriminatory.

(3) It is impossible to have the equality required 
by the Fourteenth Amendment in a public 
school system which relegates citizens of a 
disadvantaged racial minority group to sepa­
rate schools.

FIRST POINT

The Court erred in sustaining appellees’ special 
exception to allegation 3 of appellant’s second sup­
plemental petition. (Re-stated)

Statement Under First Point

The trial of this case was concluded on the 16th day 
of May, 1947; and judgment was entered on the 17th day 
of June, 1947 (see Tr. p. 64).

The appellant’s attorneys were not present at the 
time the judgment was entered and exception sustained 
by the Court. The Court allowed appellant’s exception 
to the Court’s ruling sustaining said exception (see Judg­
ment of the Court, Tr. p. 64).



6

Appellees filed their first amended answer upon which 
the case went to trial. Allegation 2, Section 2 of said 
amended answer reads as follows:

“ Said Prairie View University was originally 
established in the year 1876 as an industrial and 
mechanical college for colored youths of Texas, 
and since that date, has been enlarged in scope to 
include other subjects as need therefor arose” 
(see Tr. p. 24).

In reply to such allegation, appellant filed his second 
supplemental petition and alleged as follows:

“ And further specially pleading herein, Rela­
tor respectfully shows he was compelled to go out 
of the State of Texas, to-wit, in 1937 to the Uni­
versity of Michigan for the purpose of doing grad­
uate study in medical bacteriology and immunol­
ogy and preventive medicine, which were offered 
to .white students at the University of Texas, but 
which was not offered at Prairie View University, 
the only school of higher learning for Negroes in 
Texas and supported by public funds.”

“ And Relator further alleges that Prairie View 
University did not, in 1937, offer equal education 
facilities to him which were available to whites at 
that time, at the University of Texas and other 
state-supported schools in Texas, nor does it now 
offer equal education facilities to him which are 
now available to whites at The University of Texas 
and other state-supported schools for whites in 
Texas”  (see Tr. p. 20).



7

Authorities Listed

Rule 80 of the Rules of Civil Procedure promulgated 
by the Supreme Court of Texas.

Pierce v. Allen, et al., 278 S. W. 453 (Syllabus 
3);

Standifer v. Bond Hardware Co., 94 S. W. 144 
(Syllabus 1);

Smith v. Fort, 58 S. W. (2d) 1080 (Syllabus 5).

Argument and Authorities Discussed

It is elementary in this state that a litigant may not 
attack his own pleadings. Appellees raised the issue by 
their pleading as to the quantity and quality of educa­
tion offered at Prairie View College, alleging in sub­
stance that the State of Texas had furnished the appel­
lant the training in Prairie View College since 1876 
which he was seeking in The University of Texas; that 
State of Texas, through Prairie View College, had offered 
the appellant the same quality and quantity of education 
that the State of Texas was offering to white citizens at 
other white institutions of learning, particularly The 
University of Texas and other state colleges, supported 
by public funds. This issue, having been raised by the 
appellees in their pleadings, could not be attacked by the 
appellees themselves. This appears to be holding in 
Wertsman, et ux. v. Lee, 262 S. W. 859 (Syllabus 6, Writ 
of Error refused by Supreme Court of Texas). The 
appellees raised the issue of the quantity and quality of 
education at Prairie View College, and took the position 
that the appellant had no right to reply to such defense. 
The quality and quantity of education offered appellant 
and citizens of the white race was one of the ultimate



8

issues in this law suit, and the burden to establish the 
fact that the State of Texas did not furnish appellant 
the quantity and quality of education offered white citi­
zens was on appellant, before he was entitled to the re­
lief sought.

To say that the rule in Texas with reference to plead­
ing is to allow the defendant to plead special defensive 
matter which goes to the heart of the plaintiff’s cause of 
action; and that the plaintiff may not reply is equivalent 
to saying that the plaintiff may not have his day in Court 
on defensive matters pleaded by defendant. This is not 
the rule under the decisions in Texas. Appellant replied 
to appellees ’ allegation as to the quantity and quality of 
education given at Prairie View College by supplemental 
petition. Rule 80 of the Rules promulgated by the Su­
preme Court of Texas for the trial of civil cases provides 
that a supplemental petition filed by the plaintiff may 
contain special exceptions, general denial, and the alle­
gation of new matters not before alleged by him in reply 
to those which have been alleged by the defendant. The 
allegation stricken from the record by the Court’s order 
was in reply to matters pleaded by the appellees.

Judge R obert W. Stayton, in an address before the 
Dallas Bar Association October 4,1941, interpreting Rule 
80, stated:

“ The Texas supplemental pleading is as be­
fore. The plaintiff may employ special exceptions, 
is deemed to have denied the affirmative allega­
tions of the defendant, must specially plead all af­
firmative matters, and must use the equivalent of 
an answer in response to affirmative claim on de­
fendant’s part. Here again, the difference between 
the federal practice and the Texas practice lies in



9

the desire of the Texas rules to maintain a frame­
work for the case.”

In this case, appellees followed the rules promulgated 
by the Supreme Court in answering the matters of de­
fense alleged by the appellees and the interpretation 
placed on Rule 80 by the Rules Committee; hut the 
learned Trial Court struck out the answer contained in 
appellant’s supplemental petition and left the appellees’ 
allegation and special defense unanswered; and his judg­
ment says that the appellant has no right to answer such 
defensive matters. The higher courts in this state have 
decided the purpose and function of a supplemental peti­
tion; and the decisions of the higher courts, we believe, 
support the contention of appellant in this case. In 
Pierce v. Allen, et al., supra, Chief Justice J a c k s o x , 
speaking for the Amarillo Court of Civil Appeals, dis­
posed of this issue in the following language:

“ The office of a supplemental petition is to reply 
to the answer of the defendant. It may set up new 
matters via confession and avoidance of the new 
matters pleaded in the answer or may contain 
additional facts responsive to such new matter 
which would entitle the plaintiff to affirmative re­
lief. ’ ’

It is obvious that the issue raised by the pleadings 
here under discussion raised a material issue, for if the 
State of Texas had afforded the same quantity and qual­
ity of education to the appellant as it furnished to the 
white citizens of Texas, there would be no controversy. 
The issue here raised was the determining factor in this 
law suit, and we submit that the learned Trial Court erred 
in sustaining such exception.



10-

SECOND POINT

The Trial Court erred in excluding the testimony 
of the witness, Dr. Charles H. Thompson, with ref­
erence to the quantity and quality of education of­
fered at the universities and colleges, other than 
Prairie View College, maintained by the State of 
Texas (S. F. beginning with the last question on p. 
387 to p. 469, inclusive). (Re-stated)

Statement Under Second Point

We adopt statement under First Point as the state­
ment under this Point.

The case was concluded as before stated on the 16th 
day of May, 1947; and the judgment was actually ren­
dered on June 17, 1947, at which time, the appellant’s 
attorneys were not present, but the Trial Court allowed 
appellant’s exception to the ruling of the Court, excluding 
such evidence as shown (Tr. p. 64). And as a part of 
the statement under this Point, we refer to the testimony 
of the witness, Dr. Charles H. Thompson (S. F. pp. 380- 
469, inclusive). (To copy the entire testimony of Dr. 
Thompson in this brief would do violence to the rules 
governing the preparation of briefs.)

Authorities Listed

Pule 3/3 of the Rules of- Civil Procedure promulgated 
by the Supreme Court of Texas for trial of civil cases.

San Antonio Traction Company v. Higdon, 123 
S. W. 732 (syllabi 1, 2, 3, and 4);



11

Ware v. Schaeffer, et al., 29 S. W. 756 (syllabus 
1, Supreme Court of Texas);

Panhandle Grain & Elevator Co. v. Dowling, 
247 S. W. 873 (syllabus 20).

Argument and Authorities Discussed

The issue as to the quantity and quality of education 
was raised by the first amended answer of the appellees 
and the second supplemental petition of the appellant. 
A reading of the appellant’s second supplemental peti­
tion and the appellees first amended answer will leave 
no doubt in our opinion with reference to the issue being 
raised as to the quantity and quality of education at the 
other educational institutions maintained by the State of 
Texas, and the quality and quantity of education offered 
at Prairie View College. The ultimate issue in this law 
suit is the quantity and quality of education offered 
appellant by the State of Texas and the quantity and 
quality of education offered other citizens not of the same 
race as appellant at the universities and colleges main­
tained and supported by the State of Texas, from which 
appellant is excluded. The appellees contended that the 
appellant’s constitutional rights had not been violated 
for he was offered the same quantity and quality of edu­
cation at Prairie View College as was offered to the white 
citizens of Texas at the universities and other colleges 
of Texas. These issues were squarely joined, appellees 
alleging that the State of Texas had met its obligation 
by furnishing the same quantity and quality of education 
to appellant at Prairie View College as the State of Texas 
furnished its white citizens at the universities and other



1 2

colleges supported by the State of Texas, from which 
appellant was excluded. The appellant denied such alle­
gation and alleged.that the State of Texas had never 
offered the same quantity and quality of education at 
Prairie View College as is offered at The University of 
Texas and other colleges supported by the State of Texas. 
Thus, a material issue was joined by the pleadings of the 
parties. The testimony excluded was in support of appel­
lant ’s theory that the same quantity and quality of educa­
tion was not offered and had never been offered at Prairie 
View College, as the quality and quantity of education 
offered at the universities and other colleges of Texas 
other than Prairie View.

The learned Trial Court, by its judgment, says that 
the appellant had no legal right to dispute such allegation 
or to offer any testimony tending to disprove such ma­
terial defense. We, therefore, submit that the Trial Court 
erred. This question is not an open question in the courts 
of Texas. The question has been decided many times by 
the courts of Texas and contrary to the holding of the 
learned Trial Court. In the case of San Antonio Trac­
tion Co. v. Higdon, Justice Neal, speaking for the Court 
upon a similar question as the question here presented, 
used the following language:

“ The meaning of the word ‘ relevant’ as applied 
to testimony is that it directly touches upon the 
issues which the parties have made by their plead­
ing so as to assist in getting at the truth of it.
It is not necessary, however, that it should itself 
bear directly upon the points in issue, for, if it be 
but a link in the chain of evidence tending to prove



13

the issue by reasonable inference, it may neverthe­
less be relevant.
From these elementary principles, it logically fol­
lows that to determine the relevancy of evidence, 
the pleadings of the parties must first be looked to 
for the purpose of ascertaining the issue.”

The Coui’t further said:

“ But the Court’s determining in this manner what 
the issues of fact will under the evidence be, sub­
mitted to the jury cannot serve as a test for deter­
mining the relevancy of evidence introduced or 
offered upon the trial. Such tests can only be the 

■ pleadings of the parties for it is from them the 
issues of fact and of law primarily arise.”

When the rule of law set out above as to the test of 
the issues raised is considered and the record in this case 
is examined, it is in our opinion too clear for argument 
that the testimony of the witness, Dr. Charles H. Thomp­
son, was relevant as well as material to the issues of fact 
alleged in appellees’ first amended answer and appel­
lant’s second supplemental petition. If the judicial mind 
is focused upon the pleadings in this case, it will be per­
ceived that the issue of the quantity and quality of educa­
tion offered at the universities and other colleges sup­
ported by the State of Texas, other than Prairie View, 
was clearly raised, and that such issue was a material 
issue in the final determination of this law suit. We, 
therefore, submit that the learned Trial Court erred in 
sustaining appellant’s exception to the testimony of the 
witness, Dr. Charles H. Thompson, and excluding the 
same.



14

THIRD POINT

The Court erred in excluding the evidence of the 
appellant as to the admission of Donald Murray to 
the law school of the University of Maryland and 
the results thereof in a situation analogous to the 
instant case, as shown in appellant’s bill of excep­
tion, as fully set out (S. F. pp. 478-482). (Re-stated)

Statement Under Third Point

The testimony at the trial of this cause was not put 
on in the regular order by agreement of counsel (S. F. 
8). The testimony of Donald Murray was tendered in 
the middle of the trial and was excluded (8. F. 477-478). 
(To copy this entire testimony in this brief would do 
violence to the rules governing preparation of briefs.) 
This testimony appearing in appellant’s bill of exception 
shows that Donald Murray in a situation closely similar 
to the case at bar was denied admission to the law school 
of the University of Maryland and was admitted only 
after legal action. Despite beliefs that he would be 
ostracized and denied full participation, he was not 
ostracized or segregated, took part in all of the classes, 
participated in all activities and did not receive any un­
favorable treatment on the part of any student or pro­
fessor (S. F. 481). With the exception of separation of 
the races on buses and trolley cars in Austin there is no 
item of segregation in Austin that is not present in Balti­
more, Maryland (S. F. 481).

Later in the trial during the testimony for appellees 
the following took place :

“ Q. I will ask you whether or not you think 
the Negro student would have the same oppor-



15

tunity to develop leadership in a mixed institution, 
or at a separate institution? A. I think that nor­
mally, ordinarily, he would have a better oppor­
tunity to develop leadership in a separated insti­
tution than in a mixed institution, and I make 
that statement because the whole life of the insti­
tution would then be open to the Negro’s partici­
pation. My judgment is that particularly in the 
south, that the Negroes’ opportunities in institu­
tions patronized in the great majority by whites 
would be limited to the class room facilities, and 
the regular educational activities almost wholly.

Mr. Durham: Just a minute. Now, Your
Honor, they have objected to that form of 
testimony. I don’t want to object to it, if I 
have got a right to reopen my testimony. I 
won’t object, if I have got a right to tender 
certain testimony that the Court excluded yes­
terday.

The Court: Of course, if it is the same, if 
this is admissible in rebuttal, testimony on 
your side would be admissible.

Mr. Durham: No objection”  (S. F. 534,
535).

The same witness was permitted to testify as to his 
experiences with a Negro student at the University of 
Colorado in 1935 or 1936 and his opinion as to his lack 
of participation in college activities (S. F. 544-545). At 
the close of this testimony counsel for appellant again 
tendered the testimony of Donald Murray, and it was 
again excluded (S. F. 559).



16

Argument

The issues involved in this case are clear. There is 
no question as to. the qualifications of appellant for a 
legal education. Appellees seeks to justify their refusal 
to admit him upon the provision of the Texas Consti­
tution requiring separation of Negro and other pupils. 
In an effort to defend the validity of these provisions 
appellees contend that separation of the Negro from 
other citizens is for the best interest and introduced 
testimony tending to show that Negroes are not accepted 
in school life where admitted to mixed schools. The same 
witness testified as to the dire results to be expected if 
Negroes are admitted in the law school of the University 
of Texas. It is, therefore, clear that the testimony of 
Donald Murray was not only germane to the issues in 
this case but was also clearly admissible in rebuttal to 
the testimony of appellees.

FOURTH POINT

The Court erred in holding that the proposal of 
the State to establish a racially segregated law school 
afforded the equality required by the equal protec­
tion clause of the Fourteenth Amendment to the 
Constitution of the United States and thus justified 
the denial of appellant’s petition for admission to the 
law school of the University of Texas. (Re-stated)

.... Statement Under Fourth Point

The issues in this case are clear. There has never 
been any question of the qualifications of appellant for 
legal training. He applied for admission to the only law



17

school maintained by the State of Texas and was refused 
admission solely because of his race and color. Appel­
lees defend their action by relying upon Section 7 of Ar­
ticle 7 of the Constitution of Texas requiring separate 
schools for “ white and colored children.”

i
In the pleadings and evidence in the case, appellees 

relying on the Constitution of Texas claim that separate 
schools must he maintained and that they are complying 
with the other provision of the section requiring that 
“ impartial provision shall be made for both,”  by the 
establishment and maintenance of Prairie View Univer­
sity for Negroes and a new school to be established, and 
that this complies with the requirements of the Four­
teenth Amendment by establishing “ substantial”  equal­
ity. Appellant’s position is that insofar as this provi­
sion of the Constitution of Texas deprives him of the 
right to attend the law school of the University of Texas, 
it is unconstitutional and in violation of the Fourteenth 
Amendment.

Although Negroes have always been excluded from 
the University of Texas because of their race or color 
(S. F. 95), the State of Texas has never offered them 
“ separate but equal”  facilities (S. F. 94-96). As Dean 
Pettinger, a witness for appellees who has studied edu­
cational facilities for Negro and white students in Texas 
stated: “ I am unable to think for the moment of col­
ored institutions and white institutions which do have 
equal facilities with which I have been associated”  (S. 
F. 547).

When appellant applied for a legal education the 
only law school in existence maintained by the State of 
Texas was the one at the University of Texas. He was



18

refused admission solely because of his race or color. 
At the time of the refusal and at the time this case was 
filed there was no other law school available. Equally 
qualified white students who applied at the same time 
have received more than a year of legal education fur­
nished by the State of Texas in an institution with more 
than sixty years of tradition and in a well equipped, well 
recognized and fully accredited law school.

The University of Texas has been in existence since 
the last century. The law school has been in existence 
for more than fifty years. The present law school was 
built in 1906 or 1907 (S. F. 81). The law school is rec­
ognized and accredited by every association in the field 
(S. F. 31). It is approved by the American Bar Asso­
ciation (S. F. 11), and is a member of the Association 
of American Law Schools (S. F. 159). No law school 
can be accredited by either association in less than two 
years of continual compliance with its requirements (S. 
F. 21, 45, 159).

After this suit was filed, the State of Texas acting- 
through its agents sought to establish some form of law 
school for Negroes in Houston in February, 1947 (see 
testimony of E. L. Angell, S. F. 46-59, 483-488). Be 
tween February and March 10, 1947, according to the 
testimony of appellees, efforts were made to establish a 
law school for Negroes in Austin. The so-called Austin 
school supposed to be ready for use on March 10th was 
to be in the basement of a building (S. F. 147) leased on 
February 28 until August 31, 1947 with an alleged op­
tion to lease until August 31, 1948 (S. F. 70, 81). No 
one knows for certain what will happen after that time 
although one of appellees’ witnesses assumed it would 
go to Houston (S. F. 88, 91). Dean Charles T. McCor-



19

rnick of the University of Texas and former president of 
the Association of American Law Schools, called by the 
appellees testified:

“ Q. As a former President of the American 
Association of Law Schools, and as the Dean of 
several law schools, and as an outstanding author­
ity in several fields of law, Dean McCormick, do 
you—are you of the opinion that one of the basic 
elements in a great law school is the history and 
traditions which have been built up over years of 
time, including the graduates who have become 
famous in the State of Texas ? Is that your opin­
ion—that is an element in a great law school1? A. 
Yes, that is a source of pride to a law school that 
has that background.

“ Q. One other question on that along that same 
line. Is it, in your opinion, a good thing for a law 
school to be unstable as to its location, and to its 
faculty, sort of a roving school of law? Is that, 
in your opinion, an unsatisfactory condition in 
which to operate a law school? A. I would think 
that a roving law school would certainly not be an 
ideal school”  (S. F. 163-164).

It is admitted by the Chairman of the Board of Rfe- 
gents of the University of Texas that no fair comparison 
can be made of the monetary value of the law school 
building at the University of Texas and those of the pro­
posed law school for Negroes (8. F. 74).

When the Negro law school was to be ready for use 
on March 10th there was no library other than a few 
text-books (S. F. 150) and no librarian (S. F. 124) 
despite the fact that there was a well equipped library 
at the University of Texas with a full time librarian and 
assistants to aid the students (S. F. 230-231). Although 
students at the Negro school were to be permitted to use



20

the library in the capital it was admitted that this would 
not meet the requirements of the accrediting associa­
tions (S. F. 240). The books claimed to be on order were 
only requisitioned on the 25th of February (S. F. 69) 
and were not available on March 10 or the date of trial 
(S. F. 76).

The proposed faculty for the law school consisted of 
professors from the University of Texas who would give 
part time to the Negro school. No plans whatsoever 
were made for moot-court, scholarship aid or law review 
similar to the University of Texas. On the basis of what 
was available on March 10th, the proposed date for open­
ing the Negro school and the time of trial of this case 
the highest claim made by the appellees was that it fur­
nished facilities “ substantially”  equal (S. F. 16). 'Much 
reliance was placed on facilities such as building, library, 
faculty and other items to be furnished in the future.

On the other hand, appellant produced testimony and 
documentary evidence showing the inequality of the 
existing and proposed facilities and the discrimination 
inherent in a segregated system. The testimony of these 
experts which cannot be accurately digested stands un­
contradicted in this record.

ARGUMENT AND AUTHORITIES LISTED

I
Courts have invalidated racial classifications 
imposed by states in a great variety of situa­
tions as denials of equal protection of the law.

The Sup/eme Court has repeatedly struck down state 
statutes and practices imposing racism in diverse areas



21

of human activity. In judicial procedure for example, 
the Supreme Court has at every opportunity made it 
plain that racial distinctons are not to be tolerated. 
Whether in the exclusion of Negroes from the grand jury 
which has indicted a Negro,1 or in similar petit jury ex­
clusion,2 or in the intimidation or coercion of a Negro ac­
cused of crime,8 the Court has undertaken to see that 
judicial proceedings from preliminary investigation to 
judgment are free of racism.

A state is not permitted to impose residential segre­
gation by debarring Negroes from owning or occupying 
property in particular areas.4 Distinction may not be 
made between white and colored public school teachers 
in the fixing and payment of salaries.5 On the affirma­
tive side, the Supreme Court has found no difficulty in up­
holding a statute requiring labor unions to admit quali­
fied Negroes to membership, and, in so doing has pointed 
out that its ruling is in line with the fundamental policy 
of the Fourteenth Amendment:

“ A judicial determination that such legislation 
violated the Fourteenth Amendment would be a 
distortion of the policy manifested in that amend­
ment which was adopted to prevent state legisla­
tion designed to perpetuate discrimination on the

1 Carter v. Texas, 177 U. S. 442; Smith v. Texas, 311 U. S. 
128; Hill v. Texas, 316 U. S. 400.
TT Bi orris * v- Alabama, 294 U. S. 587; Pierre v. Louisiana, 306 

b. 354.
v- Mississippi, 297 U. S. 278; Chambers v. Florida,

316 U S 547 ’ WMte V' TeXaS’ 309 U’ S- 631; Ward v- Texas’
TT Buchanan v. Warley, 245 U. S. 60; Harmon v. Tyler, 273 
U. 8. 668; Richmond v. Deans, 281 U. S. 704.
■m ^ s*on V- School Board, 112 F. (2d) 992 (certiorari denied, 
011 U. b. 693).



basis of race or color. We see no constitutional 
basis for the contention that a state cannot pro­
tect workers from exclusion solely on the basis of 
race, color or creed by an organization, functioning 
under the protection of the state, which holds it­
self out to represent the general business needs of 
employees.

“ To deny a fellow-employee membership be­
cause of race, color or creed may operate to pre­
vent that employee from having any part in the 
determination of labor policies to be promoted and 
adopted in the industry and deprive him of all 
means of protection from unfair treatment arising 
out of the fact that the terms imposed by a domi­
nant union apply to all employees, whether union 
members or not. In their very nature, racial and 
religious minorities are likely to be so small in 
number in any particular industry as to be unable 
to form an effective organization for securing set­
tlement of their grievances and consideration of 
their group aims with respect to conditions of em­
ployment. The fact that the employer is the Gov­
ernment has no significance from this point of 
view. ’ ’ 8

The history of the attempts of states to establish 
segregation in primary elections deserves special men­
tion. Here, for a long time the theory was urged that 
Negroes could not complain if they were excluded from 
the “ white”  primary but left free to conduct their own 
primary. As late as 1935 this sterile legalism based upon 
theory dissociated from the realities of voting and elec­
tions prevailed in judicial decision. Even the Supreme 6

6 Railway Mail Association v. Corsi, 326 U. S. 88, at page 94 
(1945).



Court seemed unmindful of the broader significance of 
its declaration in another connection that:

“  . . . The Amendment [15th] nullifies sophis­
ticated as well as simple-minded modes of discrim­
ination. It hits onerous procedural requirements 
which effectively handicap exercise of the fran­
chise by the colored race although the abstract 
rights to vote may remain unrestricted as to 
race.”  7

aiid followed this unrealistic legalism as to primaries and 
thereby disfranchised 540,565 adult Negro citizens in 
Texas alone.

Recently, however, reexamining the segregated pri­
mary election device in the light of its actual conse­
quences, the Supreme Court has outlawed the white pri­
mary as a discriminatory and unconstitutional device, 
whether in Federal or state elections. The extent to 
which realism has prevailed in this field over a legalism 
dissociated from the actualities of human behavior is 
well illustrated by the following excerpt from an opinion 
handed down by the District Court of the United States 
for the Eastern District of South Carolina only a few 
months ago in granting an injunction restraining officials 
of the Democratic Party from excluding Negroes from 
voting in primary elections in South Carolina.

“ And so we are faced with the final decision 
as to whether or not the present Democratic Party 
of South Carolina, because it is no longer gov­
erned by State statutes, is a private organization 
and (as was said in argument) must be treated as 
a private business or social club, with which the 
State and National Governments have no concern;

7 Lane v. Wilson, 307 U. S. 268, 275.



24

or is it after all the determining body in the choice 
of National and State officers in South Carolina, 
or to use the old homely illustration, is it the same 
horse although of a somewhat different color!
* * * * * * * * *

“ I am of the opinion that the present Demo­
cratic Party in South Carolina is acting for and 
on behalf of the people of South Carolina; and 
that the Primary held by it is the only practical 
place where one can express a choice in selecting 
federal and other officials. Racial distinctions can­
not exist in the machinery that selects the officers 
and lawmakers of the United States; and all citi­
zens of this State and Country are entitled to cast 
a free and untrammelled ballot in our elections, 
and if the only material and realistic elections are 
clothed with the name ‘ primary’, they are equally 
entitled to vote there.” 8

II

The doctrine of racially “separate but equal” 
public facilities is merely a constitutional hy­
pothesis which has no application where racial 
segregation is shown to be inconsistent with 
equality.

Classifications and distinctions based on race or color 
aave mo  moral or legal validity in our society. They are 
cor.:vary :o our cons::nation and laws, and the United
S.a os Sum erne Court aas struck town statutes, ordi­
nances mm M ia v u r .  M o m -.es se>. v  t i t  mm establish, suck classi- 
icauous. a; to Moctsioets ■ '_t Mtrasstsre trans-
tvasuea tun; v none edaestiocu however, mar Court has 
adey-.eu a ittbSien-j ..yad anatkocteSM. Tdnnai dec-



25

trine under which racial separation is deemed permissible 
when equality is afforded. An examination of these de­
cisions will reveal that the “ separate but equal”  doctrine 
is at best a bare constitutional hypothesis postulated in 
the absence of facts showing the circumstances and conse­
quences of racial segregation and based upon a fallacious 
evaluation of the purpose and meaning inherent in any 
policy or theory of enforced racial separation.

Many states have required segregation of Negroes 
from all other citizens in public schools and on public 
conveyances. The constitutionality of these provisions 
has seldom been seriously challenged. No presumption 
of constitutionality should be predicated on this non 
action. A similar situation existed for many years in 
the field of interstate travel where state statutes requir­
ing segregation in interstate transportation were con­
sidered to be valid and enforced in several states for 
generations and until the Supreme Court in 1946 held 
that such statutes were unconstitutional when applied 
to interstate passengers.9

Although separate school laws have been enforced by 
several states, an examination of the cases in the United 
States Supreme Court and lower courts will demonstrate 
that these statutes have never beem seriously challenged 
nor their validity examined and tested upon a record 
adequately presenting the critical and decisive issues 
such as are presented by the record in this case:

(1) Whether there is a rational basis for racial 
classification for school purposes.

(2) Whether public schools, “ separate but equal”  
in theory are in fact and practical administra-

_ _ ______ tion consistently unequal and discriminatory.
9 Morgan v. Virginia, 328 U. S. 373 (1946).



26

(3) Whether it is possible to have the equality 
required by the Fourteenth Amendment in a 
public school system which relegates citizens 
of a disadvantaged racial minority group to 
separate schools.

The Thirteenth, Fourteenth and Fifteenth Amend­
ments were adopted for the purpose of securing to a 
recently emancipated race , all the civil rights of other 
citizens.10 Unfortunately this has not been accomplished. 
The legislatures and officials of the southern states 
through legislative policy continued to prevent Negro 
citizens from obtaining their civil rights by means of 
actions which only gave lip service to the word “ equal.” 
One of the most authoritative studies made of the prob­
lem of the Negro in the United States points out that:

“ While the federal Civil Rights Bill of 1875 
was declared unconstitutional, the Reconstruction 
Amendments to the Constitution—which provided 
that the Negroes are to enjoy full citizenship in 
the United States, that they are entitled to ‘ equal 
benefit of all laws,’ and that ‘ no state shall make 
or enforce any law which shall abridge the privi­
leges and immunities of citizens of the United 
States’—could not be so easily disposed of. The 
Southern whites, therefore, in passing their vari­
ous segregation laws to legalize social discrimina­
tion, had to manufacture a legal fiction of the same 
type as we have already met in the preceding dis­
cussion on politics and justice. The legal term for 
this trick in the social field, expressed or implied 
in most of the Jim Crow statutes, is ‘ separate, but 
equal.’ That is, Negroes were to get equal accom­
modations, but separate from the whites. It is 
evident, however, and rarely denied, that there is

10 Strand er v. West Virginia. 100 U. S. 303.



27

practically no single instance of segregation in the 
South which has not been utilized for a significant 
discrimination. The great difference in quality of 
service for the two groups in the segregated set­
ups for transportation and education is merely the 
most obvious example of how segregation is an 
excuse for discrimination. Again the Southern 
white man is in the moral dilemma of having to 
frame his laws in terms of equality and to defend 
them before the Supreme Court—and before his 
own better conscience, which is tied to the Ameri­
can Creed—while knowing all the time that in 
reality his laws do not give equality to Negroes, 
and that he does not want them to do so.” 11 *

In one of the early cases interpreting these amend­
ments it was pointed out that: “ At the time when they 
were incorporated into the Constitution, it required little 
knowledge of human nature to anticipate that those who 
had long been regarded as an inferior and subject race 
would, when suddenly raised to the rank of citizenship, 
he looked upon with jealousy and positive dislike, and 
that state laws might be enacted or enforced to perpetuate 
the distinctions that had before existed. Discrimination 
against them had been habitual. It was well known that, 
in some States, laws making such discriminations then 
existed, and others might well be expected. . . . They 
especially needed protection against unfriendly action in 
the States where they were resident. It was in view of 
these considerations the 14th Amendment was framed 
and adopted. It was designed to assure to the colored 
race the enjoyment of all the civil rights that under the 
law are enjoyed by white persons, and to give to that

11 An American Dilemma, by Gunnar Myrdal, published by
Harper & Bros. (1944), Vol. 1, pages 580, 581.



2 8

race the protection of the General Government, in that 
enjoyment, whenever it should be denied by the States. 
It not only gave citizenship and the privileges of citizen­
ship to persons of color, but it denied to any State the 
power to withhold from them the equal protection of the 
laws, and authorized Congress to enforce its provisions 
by appropriate legislation.” 12

Mr. Justice Strong in this opinion also stated: “ The 
words of the Amendment, it is true, are prohibitory, but 
they contain a necessary implication of a positive im­
munity, or right, most valuable to the colored race—the 
right to exemption from unfriendly legislation against 
them distinctively as colored; exemption from legal dis­
crimination, implying inferiority in civil society, lessen­
ing the security of their enjoyment of the rights which 
others enjoy, and discriminations which are steps towards 
reducing them to the condition of a subject race.” * 18

The equal protection clause of the Fourteenth Amend­
ment to the Constitution clearly guarantees to every 
citizen the right to complete equality as to all facilities 
of the state wherein the citizen resides. Yet, it has been 
argued that state statutes requiring the segregation of 
the races do not violate the Fourteenth Amendment. This 
doctrine has been based upon state court decisions and 
certain language in opinions of the United States Su­
preme Court.

It is unfortunate that the first case to reach the Su­
preme Court on the question of whether or not segre­
gation of Negroes was a violation of the Fourteenth 
Amendment should come to the Supreme Court during

12 Strauder v. W est Virginia, supra, at page 306.
18 Strander v. West Virginia, supra, at pages 307-308.



29

the period immediately after the Civil War when the 
Fourteenth Amendment was regarded as a very narrow 
limitation on state’s rights.

The first expression by the Supreme Court of the 
doctrine of “ separate but equal”  facilities in connection 
with the requirements of equal protection of the law ap­
pears in the case of Plessy v. Ferguson.14, That case in­
volved the validity of a state statute of Louisiana re­
quiring segregation on passenger vehicles. The peti­
tioner there claimed that the statute was unconstitu­
tional and void. A demurrer by the State of Louisiana 
was sustained, and ultimately the United States Supreme 
Court affirmed the judgment of the Louisiana courts in 
holding that the statute did not violate the Thirteenth 
Amendment nor did it violate the Fourteenth Amend­
ment. Mr. Justice B r o w n  in his opinion for the ma­
jority of the Court pointed out that:

“ A statute which implies merely a legal dis­
tinction between the white and colored races—a 
distinction which is founded in the color of the 
two races, and which must always exist so long as 
white men are distinguished from the other race 
by color—has no tendency to destroy the legal 
equality of the two races, or reestablish a state of 
involuntary servitude . . . ”

Mr. Justice B r o w n , in  continuing, stated that the ob­
ject of the Fourteenth Amendment was to enforce abso­
lute equality before the law but:

“  . . . Laws permitting, and even requiring, their 
separation in places where they are liable to be 
brought into contact do not necessarily imply the 
inferiority of either race to the other, and have

44 163 U. S. 537, 543.



30

been generally, if not universally, recognized as 
within the competency of the state legislatures in 
the exercise of their police power. . . . ” 15 16

It should be noted that this case was based solely on 
the pleadings, and that there was no evidence either be­
fore the lower courts or the United States Supreme 
Court on either the unreasonableness of the racial dis­
tinctions or of the inequality resulting from segregation 
of Negro citizens. The plaintiff’s right to “ equality”  in 
fact was admitted by demurrer. The decision in the 
Plessy case appears to have been based upon the decision 
of Roberts v. Boston, 5 Cush. 198 (1849), a case decided 
before the Civil War and before the Fourteenth Amend­
ment was adopted. In the Plessy case, the majority 
opinion cites and relies upon language in the decision in 
the Roberts case and added: “ It was held that the powers 
of the Committee extended to the establishment of sepa­
rate schools for children of different ages, sexes and 
colors, and that they might also establish special schools 
for poor and neglected children, who have become too old 
to attend the primary school, and yet have not acquired 
the rudiments of learning, to enable them to enter the 
ordinary schools.” 18

Mr. Justice H a r l a n  in his dissenting opinion pointed 
out that:

“ In respect of civil rights, common to all citi­
zens, the Constitution of the United States does 
not, I think, permit any public authority to know 
the race of those entitled to be protected in the 
enjoyment of such rights Every true man has 
pride of race, and under appropriate circum-

15 Plessy v. Ferguson, supra, at page 543.
16163 U. S. 537, 545.



31

stances, when the rights of others, his equals be­
fore the law, are not to be affected, it is his privi­
lege to express such pride and to take such action 
based upon it as to him seems proper. But I deny 
that any legislative body or judicial tribunal may 
have regard to the race of citizens when the civil 
rights of those citizens are involved. Indeed such 
legislation as that here in question is inconsistent, 
not only with that equality of rights which per­
tains to citizenship, national and state, but with 
the personal liberty enjoyed by every one within 
the United States.”

and
“ There is no caste here. Our Constitution is 
color-blind, and neither knows nor tolerates classes 
among citizens. In respect of civil rights, all citi­
zens are equal before the law. The humblest is 
the peer of the most powerful. The law regards 
man as man, and takes no account of his surround­
ings or of his color when his civil rights as guar­
anteed by the supreme law of the land are involved. 
It is therefore to be regretted that this high tri­
bunal, the final expositor of the fundamental law 
of the land, has reached the conclusion that it is 
competent for a state to regulate the enjoyment 
by citizens of their civil rights solely upon the 
basis of race.”

More recent decisions of the Supreme Court support 
Mr. Justice H a k l a n ’ s conclusion.17 In re-affirming the 
invalidity of racial classification by governmental agen­
cies, Chief Justice Stone speaking for the Court stated: 
“ Distinctions between citizens solely because of their 
ancestry are by their very nature odious to a free people 
whose institutions are founded upon the doctrine of 
equality. For that reason legislative classification or

17 Hirabayashi v. United States, 320 U. S. 81, 100 (1943).



32

discrimination based on race alone has often been held 
to be a denial of equal protection. ” 18

In the same case, Mr. Justice M u r p h y  filed a concur­
ring opinion in which he pointed out that racial distinc­
tions based on color and ancestry ‘ ‘ are utterly inconsistent 
with our traditions and ideals. They are at variance 
with the principles for which we are now waging war.” 19

Mr. Justice M u r p h y  in a concurring opinion in a case 
involving discrimination against Negro workers by a 
railroad brotherhood acting under a federal statute 
(Railway Labor Act) pointed out:

“ Suffice it to say, however, that this constitu­
tional issue cannot be lightly dismissed. The cloak 
of racism surrounding the actions of the Brother­
hood in refusing membership to Negroes and in 
entering into and enforcing agreements discrim­
inating against them, all under the guise of Con­
gressional authority, still remains. No statutory 
interpretation can erase this ugly example of 
economic cruelty against colored citizens of the 
United States. Nothing can destroy the fact that, 
the accident of birth has been used as the basis 
to abuse individual rights by an organization pur­
porting to act in conformity with its Congressional 
mandate. Any attempt to interpret the Act must 
take that fact into account and must realize that 
the constitutionality” of the statute in this respect 
depends upon the answer given.

‘ ‘ The Constitution voices its disapproval when­
ever economic discrimination is applied under 
authority of law against any race, creed or color. 
A sound democracy cannot allow such discrimina­
tion to go unchallenged. Racism is far too virulent

18 Hirabayashi v. United States, supra.
19 Ibid, at page 110.



33

today to permit the slightest refusal, in the light 
of a Constitution that abhors it, to expose and 
condemn it wherever it appears in the course of 
a statutory interpretation. ’ ’ 20

The doctrine of “ separate but equal”  treatment rec­
ognized in Plessy v. Ferguson was arrived at not by any 
study or analysis of facts but rather as a result of an 
ad hominem conclusion of “ equality”  by state courts. 
As a matter of fact, the United States Supreme Court 
has never passed directly upon the question of the valid­
ity or invalidity of state statutes requiring the segrega­
tion of the races in public schools. The first case on 
this point in the United States Supreme Court is the 
case of Cummings v. Richmond County Board of Edu­
cation.21 The Board of Education of Richmond County, 
Georgia, had discontinued the only Negro high school 
but continued to maintain a high school for white pupils. 
Petitioner sought an injunction to restrain the Board 
from using county funds for the maintenance of the 
white high school. The Trial Court granted an injunc­
tion which was reversed by the Georgia Supreme Court 
and affirmed by the United States Supreme Court. The 
opinion written by Mr.' Justice Harlan expressly ex­
cludes from the issues involved any question as to the 
validity of separate schools. The opinion pointed out:

“ It was said at the argument that the vice in 
the common-school system of Georgia was the re­
quirement that the white and colored children of 
the state be educated in separate schools. But 
we need not consider that question in this case. 
No such issue was made in the pleadings.”

20 Steete v. L. N. R. R. Co., 323 U. S. 192 at page 209 (1944).
21175 U. S. 528 (1890).



34

In the case Gong Lum v. Rice,22 23 the question was 
raised that the right of a state to classify Chinese as 
colored to force them to attend schools set aside for 
Negroes. In that case the Court assumed that the ques­
tion of the right to segregate the races in its educational 
system had been decided in favor of the states by previous 
Supreme Court decisions.

The third school case is Missouri ex rel. Gaines y. 
Canada.2* This was a petition for a writ of mandamus 
to compel the officials of the University to admit a Negro 
to the University’s law school. The state court con­
strued the state’s separate school laws as requiring sep­
aration in schools of higher education. Although the 
state university for Negroes had no law school, the state 
court construed applicable state laws as requiring the 
establishment of a Negro law school “ whenever neces­
sary or practical”  and pending the establishment of such 
a school to provide out-of-state aid to qualified Negro 
applicants. This, according to the state court, met the 
requirements of the Fourteenth Amendment.

On certiorari to the United States Supreme Court, it 
was held that offering an opportunity for legal education, 
outside the state pending possible establishment of a 
Negro law school in futuro within the State, did not con­
stitute equal educational opportunities. The narrow issue 
recognized by the Court was whether the state court’s 
denial of the writ, deprived the petitioner of the equal 
protection of the laws. In reversing the state court, Mr. 
Chief Justice H u g h e s  for the majority said: “ The peti­
tioner is entitled to be admitted to the law school of the 
State University in the absence of other and proper

22 275 U. S. 78 (1927).
23 305 U. S. 337 (1938).



35

provision for Ms legal training within the state.”  The 
issue as framed by the Court made unnecessary to its 
decision any holding as to what the decision might be if 
the state had claimed to be offering petitioner oppor­
tunity for legal education in a Negro law school then in 
existence in the state. Obviously that issue was not 
before the Court.24

Segregation in public education helps to preserve and 
enforce a caste system which is based upon race and 
color. It is designed and intended to perpetuate the slave 
tradition sought to be destroyed by the Civil War and to 
prevent Negroes from attaining the equality guaranteed 
by the federal Constitution. Racial separation is the aim 
and motive of paramount importance—an end in itself. 
Equality, even if the term be limited to a comparison of 
physical facilities, is and can never be achieved.

The only premise on which racial separation can be 
based is that the inferiority and the undesirability of the 
race set apart make its segregation mandatory in the 
interest of the well-being of society as a whole. Hence 
the very act of segregation is a rejection of our constitu­
tional axiom of racial equality.

The Supreme Court in Plessy v. Ferguson, as we have 
seen, without any facts before it upon wMch to make a *

*4 It is true that despite the fact that the Court’s position on the 
validity of a separate law school for Negroes was not necessary to 
its decision, the Court by way of dictum made the following obser- 
va ion after referring to the state’s obligation to provide substan- 
students • advantages for higher education to Negroes and white

J r 6 .®tate ^as sought to fulfill that obligation by furnishing 
equal facilities in separate schools, a method the validity of 
which has been sustained by our decisions.”



36

valid judgment adopted the “ separate but equal”  doc­
trine. Subsequent cases have accepted this doctrine as 
a constitutional axiom without examination. Hence what 
was in reality a legal expedient of the Reconstruction 
era has until now been accepted as a valid and proved 
constitutional theory. The record in this case clearly 
demonstrates the fallacious and untenable rationale on 
which the doctrine is founded and the necessity for its 
repudiation.

Equality without regard to race, color or creed is the 
very essence of our way of life. The constitution guaran­
tees it; our moral and ethical codes demand it. Since 
segregation and equality are mutually exclusive this 
Court must find that appellant’s rights under the federal 
Constitution can only be satisfied by his acceptance and 
enrollment in the University of Texas School of Law on 
the same basis with other students.

Ill

The demonstration in this record that racially 
separate schools in fact and inevitably deny 
the equality required by the Fourteenth 
Amendment, precludes the application of any 
“ separate but equal” doctrine in the field of 
public education and in the circumstances of 
this case.

A . The law school set up by appellees does 
not meet the requirements of the Four­
teenth Amendment.

The appellees admit that the equal protection clause 
of the Fourteenth Amendment to the Federal Constitu­
tion requires them to provide this appellant with the 
opportunity to secure a legal education in Texas. They,



/
/

however, contend that this requirement is met by pro­
viding appellant with a separate law school “ substan­
tially”  equal to that at the University of Texas where 
appellees have provided white citizens of Texas with 
an opportunity to acquire the best legal education offered 
in the State.

In what appears to be an attempt to comply with the 
constitutional requirements of the Fourteenth Amend­
ment, appellees set up for this appellant a law school 
which they contend and attempted to prove, on the trial 
of this case, is a law school substantially equal to that 
at the University of Texas. But the whole testimony, and 
especially that introduced by the appellees themselves, 
shows conclusively that this so-called law school is not 
substantially equal to that at the University of Texas 
in a single respect.

As a matter of fact, the testimony in this case for 
the first time presents in bold relief the inevitable dis­
crimination inherent in a segregated school pattern.

The Statement of Facts shows that the University of 
Texas Law School is a full-time, approved law school 
(S. F. 11, 31).25 It has a student body of some eight 
hundred (800) students (S. F. 351) a faculty of some 
twenty-four (24) or more full-time professors;26 a cur­
riculum offering forty-seven (47) law courses designed to 
prepare students to become practitioners, law teachers, 20

20 The American Bar Association and The Association of Amer­
ican Law Schools are the two recognized agencies which set mini­
mum standards to which every law school must conform in order 
to receive approval and consequent recognition as a law school. 
The University of Texas Law School is approved by both of these 
associations.
i ^ 6"’ee University of Texas Publication No. 4529, August 1, 
1945, School of Law.

37



public servants, and legal researchers;27 a library of more 
than sixty-five thousand (65,000) volumes (S. F. 71);28 
a budget of several million dollars (S. F. 398-416); a 
large, well-equipped building with several classrooms and 
beautiful grounds (S. F. 74); a well-established, recog­
nized law review; 20 several moot courts and other student 
extracurricular activities; 80 30 prestige which comes from 
being attached to the State’s largest and best Univer­
sity with a national and international reputation and 
sixty-four (64) years of tradition.31

The “ law school”  which appellees have hastily pro­
jected for Negroes is, on the other hand, part-time and 
unapproved (S. F. 75).32 * 34 35 It has no student body (S. F. 
22); a faculty of part-time professors (S. F. 51, 56, 68) ;ss 
a part-time Dean (S. F. 57) 84 no librarian (S. F. 231- 
232); a curriculum offering only first-year law courses 
designed to give nothing more than the bare principles 
of the subject involved (S. F. 3 9 );85 a library of only

27 Ibid.
28 The American Bar Association requires that a law school 

have at least 7,500 well-selected books to meet the minimum 
standards of approval and the American Association of Law 
Schools requires 10,000.

29 Note 26, supra.
30 Note 26, supra.
81 The law school at the University of Texas was begun in 1883.
32 See the report to the 36th Annual Meeting of the Associa­

tion of American Law Schools on Consolidation of Legal Educa­
tion in Dallas, 9 Am. Law School Review 233 (1938) ; Storey, 
Progress of Legal Education, Texas Bar Journal, Vol. 1, No. 5 
(1938).

83 The Association of American Law Schools requires a mini­
mum of four full-time professors irrespective of the number of 
students (Statement of Facts 35).

34 See Horack, Law Schools of Today and Tomorrow, 6 Am. 
Law School Review 658 (1927) for an excellent commentary on 
the part-time Dean.

35 See Boyer, Smaller Law Schools: Factors Affecting Thetr 
Methods and Objectives, 20 Oregon Law Rev. 281 (1941).



39

two-hundred (200) volumes (S. F. 13, 50, 77) ; 36 37 38 a bud­
get of only One Hundred Thousand Dollars ($100,000);37 
three or four small rooms, leased on the ground floor 
of an old office building, without any items of pulchritude 
(S. F. 13, 38, 71, 74, 80); 38 no law review;39 no moot 
court or other student activity of any description; 40 
cultural atmosphere which comes from being attached 
to a large, well-known University is completely lacking 
in every respect (S. F. 444) ;41 and of course this anoma­
lous creation of appellees can have no tradition.42

36 Note 28, supra.
37 Note 35, supra.
88 See the address of John C. Townes, former Dean of the Uni­

versity of Texas Law School before the 10th Annual Meeting of 
the Association of American Law Schools, 2 Am. Law School 
Review 436 (1910), for an excellent discussion entitled, Organi­
sation and Operation of a Law School.

39 Note 35, supra.
40 Note 35, supra.
41 Both the American Bar Association and the Association of 

American Law Schools advocate the abolishment of proprietary 
schools, i. e., schools which are not a part of a university. See 
Ballantine, H. W., The Place in Legal Education of Evening and 
Correspondence Law Schools, 4 Am. Law School Rev. 369 (1918), 
where he says: “ The evening law schools unfortunately do not 
have the cultural atmosphere which surrounds university life. By 
the university law schools system of legal education, the law school 
is conducted by and associated with a public educational institu­
tion which is not run for profit. It is an organic part of the 
university and has the benefit of university standards, spirit, sup­
port and facilities. The student is required to be in constant resi­
dence at the school, which maintains classrooms and offices for 
the professors and a library for study. This library is the school 
laboratory. The faculty of the school devote their lives to teach­
ing, study, consultation and research. These schools aim to exact 
from their students practically their entire time and their exclusive 
devotion to the study of law. They have traditions, atmosphere, 
inspiration. They publish law reviews and quarterlies and are an 
important liberalizing and progressive influence, centers of legal 
research and productivity.”

42 Note 41, supra.



40

In the face of these facts, which were brought to light 
on the trial of this case, appellees insist that this law 
school which they have provided for appellant satisfies 
the requirement of the Fourteenth Amendment. The 
case as presented and relied on by appellees shows the 
patent inequities inherent in a pattern of segregation. 
This, in itself, demonstrates the inevitable result of fal­
lacious reasoning brought about by the use of a hypo­
thesis that “ separate but equal”  facilities can ever exist 
when as a matter of fact there can be no equality in a 
segregated system. Segregation and discrimination are 
so interrelated as to make it impossible to distinguish 
one from the other.

B. The law school set up by appellees cannot 
meet the requirements of the Fourteenth 
Amendment.

The contention of appellant is, on the other hand, 
that the Fourteenth Amendment requires that appellees 
make available to him the opportunity to receive the 
identical legal training which other Texans receive. The 
appellant further contends that the only way this can 
be done is by allowing him to attend the same law school 
which other Texans attend and that requiring him to 
attend a separate law school would not afford him the 
same education even though the physical facilities be 
substantially equal.

Assuming that appellees had set up a separate law 
school equal in every physical respect to that at the Uni­
versity of Texas, the requirements of the Fourteenth 
Amendment would still not be met because: (1) the ap-



41

pellant would not receive the same education, and (2) 
the equality of the two schools is not determined by the 
physical identity of their facilities but by the similarity 
of their value in the eyes of the community.

The testimony in this case showed that in order for 
appellant to receive the same education which the 
students at the University of Texas receive, it would be 
necessary for appellees to make available to him the 
same facilities in a similar setting. It is conceded that 
it would be possible for appellees to provide substan­
tially equal physical facilities, but it is not possible to 
provide a similar setting because the student body is 
composed of one student and not a cross-section of the 
community population. If this school set up by appel­
lees for this appellant had several students, all Negro, 
it still would not be equal to that at the University of 
Texas because it would not be as representative a 
student body as that of the University of Texas. The 
testimony shows that if appellant were allowed to attend 
the University of Texas, he would have the educational 
advantage of give and take among eight hundred (800) 
schoolmates, whereas if he is required to attend this seg­
regated law school, he will have no associates. The tes­
timony of the expert witnesses was that associates are 
as essential to a law school as any other facility and that 
the advantages of being in a classroom with many stu­
dents holding diverse views on the questions of law pre­
sented are obvious to the most casual observer (S. F.



42

349-379, 560-591).43 In short, there would be no way of 
duplicating the associations which appellant would have 
at the University of Texas.

The testimony in this case further shows that assum­
ing equal facilities, appellant would not receive the same 
education because the school is unapproved, completely 
lacking in student activity and has no traditions or cul­
tural background (S. F. 349-379, 560-561). These very 
essential attributes of the University of Texas law school 
appellees cannot duplicate either.44

Appellant does not seek to have appellees establish 
a separate school for Negroes with facilities equal to 
those at the University of Texas because appellant con­
tends, as indicated infra, that “ equality is determined 
not by the physical identity of things or facilities fur­
nished, but by the identity or substantial similarity of 
their values—in short, by the community judgment at­
tached to them.”  There can be no question that a seg­
regated law school for Negroes has a very low value in

43 See: Ballantine, The Place in Legal Education of Evening 
and Correspondence Law Schools, 4 Am. Law School Rev. 369 
(1918) ; Boyer, The Smaller Law Schools, 20 Oregon Law Rev. 
281 (1941) ; Proceeding of the 36th Annual Meeting of the Asso­
ciation of American Law Schools, 9 Am. Law School Review 233 
(1938) ; Clark, Contrast: The Full-Time Approved Law School 
Compared With The Unapproved Evening School, 20 ABA 
Journal 548 (1934) ; Horack, Law Schools of Today and Tomor­
row, 6 Am. Law School Rev. 658 (1927) ; Maxwell, Chairman’s 
Address, 1 Am. Law School Rev. 337; Snyder, The Function of 
the Night Law School, 7 Am. Law School Rev. 827 (1933); 
Address of Harlan F. Stone, 4 Am. Law School Rev. 483 (1919); 
Brown, Lawyers and the Promotion of Justice (1938); Vance 
The Function of the State-Supported Law School, 3 Am. Law 
School Rev. 409 (1914) ; Reed, A. Z., Present-Day Law Schools 
(1928) ; Reed, A. Z., Social Desirability of Evening or Part-Time 
Law Schools, 7 Am. Law School Rev. 198 (1931).

44 Note 43, supra.



43

the eyes of every community since the purpose is to 
segregate a group which Texans have been led to be­
lieve is inferior.45 If this were not true, then the “ jim- 
crow” school would never have appeared. Since there 
is not even a scintilla of merit to the contention that 
Negroes are inferior and should be segregated, appel­
lees should be prevented from excluding appellant solely 
on account of his race and color. If they did set up a 
school for him with facilities which appear to be equal 
in terms of monetary value, it would not be equal in the 
mind of the community. Therefore, since the value of 
any institution is - undeniedly determined by the com­
munity judgment of it, the appellees should be prevented 
from excluding appellant from their school and relegat­
ing him to a school which could not possibly be equal 
because, of its low value in the eyes of the community.

C. The function of a state-supported law 
school.

The function of a state-supported law school is to 
serve the interests of the people of the state as a whole 
and not merely lawyers as a class nor those who seek 
to perpetuate bigotry and outmoded notions of racial 
superiority. The interests of the people of a state are 
most effectively served by providing through the . state- 
supported law school the best type of legal education 
that experts in the field have been able to recommend, as 
the welfare of society requires, not only that the public 
be free from incompetent counsel, but that the laws be

45 It is common knowledge that Negroes in the South have 
been relegated to a position of inferiority in every area of public 
life and that such a position is natural is a view which is widely 
held.



44

wisely and justly made and fairly and honestly admin­
istered. Certainly the people of a state would not allow 
their young physicians, whose job it will be to safeguard 
the lives and health of the people, to be trained in schools 
teaching antiquated methods and using outdated equip­
ment when medical experts have devised more advanced 
methods and more scientific equipment. Since law stu­
dents are the ones to whom will be entrusted the admin­
istration of justice, it is at least equally important to the 
welfare and safety of all the people that these persons 
receive the best possible training available.46 47 48 Thus, all 
resources the state can afford should be directed to this 
end and not dissipated in an attempt to maintain un­
democratic practices of racial segregation.

The modern law school today has at least four objec­
tives: (1) to prepare for law teaching, (2) to prepare for 
legal research, (3) to prepare for practice, (4) to pre­
pare for public service.47

In order to achieve these objectives, an adequate law 
school necessarily has the facilities for so doing. First 
and foremost financial resources are at their disposal. 
These resources are needed to obtain a large, well- 
trained faculty. The faculty must be large in order that 
each individual instructor carry as light a teaching load 
as possible. Even the best professors must devote their 
full time to their teaching. In order to do this, their 
income must be adequate.48

46 See Vance, The Function of the State-Supported Law School, 
3 Am. Law School Rev. 409 (1914) ; McCormick, C. T., The 
Place and Future of the State University Law School, 24 N. C. 
Law Rev. 441.

47 Boyer, The Smaller Law Schools: Factors Affecting Their 
Methods and Objectives, 20 Oregon Law Rev. 281 (1941); (S. F. 
349-379, 560-591).

48 Ibid.



45

A large, extensive, and well-organized library with 
several trained librarians is indispensable. Without 
such a library the student will be presented with a prac­
titioners’ library, rather than one adapted to legal re­
search, and graduate work would be impossible.49

An adequate law school offers special compilations 
of material to its students and a great deal of integra­
tion of courses in order to allow a teacher to become spe­
cialized.50

The student body is composed of a cross-section of the 
population in order that the students may have the op­
portunity to come into contact with all the current think­
ing and familiarize themselves with the problems of their 
state.

In addition to the financial resources, the faculty, the 
library, the curriculum and the student body, the effec­
tiveness of the adequate law school is greatly enhanced 
by its extra-curricular activities such as, legal aid clinics, 
legal institutes, drafting service, briefing service, moot 
court and law review. These activities cannot be included 
in the organized effort of the modern law school without 
adequate faculty, the time required, the special knowl­
edge required and the requisite financial resources.51

A proper building, which is well constructed, with 
comfortable and healthful rooms and good acoustics, 
lounges, offices and grounds, is essential.52

Finally, tradition and cultural atmosphere are as in­
dispensable to a first-class law school today as any other

49 Ibid.
50 Ibid.
51 Ibid.
°2 Footnote 38, supra.



46

condition and neither Mark Hopkins and a log nor a few 
rooms in a downtown office building will fulfill this re­
quirement.53

The difficulties encountered in attempting to make 
part-time schools the equivalent of full-time schools are 
so great that the most ardent partisan of the part-time 
school, Mr. Alfred Z. Reed, says that part-time schools 
should cease striving to duplicate the work of full-time 
schools and find a field of instruction to which they, and 
only they, can do justice.54

When the medical profession realized the danger to 
the community of small schools with inadequate facili­
ties, it set out to organize the field of medical education, 
to raise the standards and to drive out the schools which 
could not meet the requirements for first-rate medical 
education. Available statistics which indicate the sharp 
decline in the number of medical schools which could 
not meet certain requirements represent the result of 
pressure exerted by the American Medical Association, 
the Association of American Medical Colleges, state 
boards of examiners, the Carnegie Foundation for the 
Advancement of Teaching, and other groups. A similar 
fate awaits the small, inadequate law school.55

In Uh'Hx the American Bar Association statistics 
sh ew ed  that there w e e  ■ • v e  n a p p r o v e d  law schools in 
Te\as than any ether state in the Union. Of the twelve 
'aw schools, in Texas at that time, nine were unap-
proved.";

■r Pcift-FilM 

ort ̂ -Rtstice



47

This deplorable situation led to a movement in Texas 
to consolidate legal education. The aid of the Associa­
tion of American Law Schools was sought in this effort. 
At the 36th Annual Meeting of the Association in 1938, 
a report was made of what had occurred in Dallas as a 
result of this effort. The report stated that early in 
1937 there was a series of conferences by representa­
tives of the YMCA, which was the largest of these part- 
time unapproved schools, Southern Methodist Univer­
sity Law School, the Dallas Bar Association, the Ameri­
can Bar Association, and the Association of American 
Law Schools. As a result of these conferences, an agree­
ment was drawn and acted upon which resulted in the 
retirement of the YMCA from the field of legal educa­
tion. The YMCA school was absorbed by Southern 
Methodist University. The Dallas Bar Association 
thereupon adopted regulations which were designed to 
eliminate small, part-time and non-accredited law schools. 
The report also indicated that similar consolidations 
were under way in other areas.6. Most of the part-time 
law schools were pushed out of the field after the repeal 
of the “ diploma privilege”  and the adoption of higher 
standards for admission to the bar by the Texas Su­
preme Court.65

R. L. Storey of the Texas bar said of these higher 
standards:

” In the effort of organized bar associations to 
elevate the standards for admission to the bar, 
it is not the desire to  ir o r i a hardship opon any

-t AJ * f  ” **** 'y p e  36dz Ammtat Meeting o f the A m x k ttm
Schcr/ts' 5 Law bcVx.: m  (Y m ).a a prmfege" was the vrntm wbereiy m e bold-

ng a law school diploma waa rxx retjclrsd bar



4S

law school, and the American Bar Association will 
encourage and help any law school that will ele­
vate its standards and meet the requirements, but 
if a school cannot meet such requirements because 
of inadequate financial support or other reasons, 
its graduates cannot meet the rising standards of 
the profession. The standards of admission to 
the bar should be fixed in accordance with the 
public interest, rather than for the benefit of any 
law school or individual . . .  It is therefore the 
goal of organized bar associations to so elevate 
standards in all of the states that those who come 
into the profession will be better trained, both in 
general education and law study, than heretofore, 
which will naturally result in elevating. the pro­
fession, as well as serving the public in a more 
efficient manner. . . . ” 59

By setting up a small, part-time, unapproved law 
school for this appellant, appellees are, in fact, lowering 
the standards of legal education in the State of Texas 
for all citizens and dissipating the resources of the state 
by attempting to maintain two inferior law schools rather 
than making the one which is now in existence serve the 
needs of the state on the highest possible levels.60

59 Storey, Progress in Legal Education, Texas Bar Journal, 
Vol. 1, No. 5 (1938).

60 See the address of Charles E. Dunbar before The Association 
of American Law Schools (1939), The A B A  Program in the Field 
of Legal Education and Admissions to the Bar and the Part-Time 
School Problem; President’s Address, 17th Annual Meeting Asso­
ciation of American Law Schools, 4 Am. Law School Rev. 483 
(1919 ); Chairman’s Address, A B A  Section on Legal Education, 
1 Am. Law School Rev. 337 (1905).



49

D. The expert testimony introduced at the 
trial establishes that there is no rational
justification for segregation in professional 
education and that substantial discrimina­
tion is a necessary consequence of any 
separation of professional students on the 
basis of color.

1. The professional skills developed through gradu­
ate training are among the most important elements of 
our society. Their importance is so great as to be almost 
self-evident. They are the end results, the products of 
education, but, at the same time, they do not constitute 
the full purpose of education. A definition of that pur­
pose, particularly in its relationship to segregation, has 
been furnished by an eminent authority, Dr. Robert Red- 
field of the University of Chicago. He states:

“  . . .  I should say that the main purposes of edu­
cation are to develop in all citizens in accordance 
with the natural capacities of those citizens, the 
fullest intellectual and moral qualities, and the 
most effective participation in the duties of the 
citizens”  (8. F. 312).

It clearly follows then, that segregation is an abortive 
factor in the full realization of the objectives of educa­
tion. First, it prevents both the Negro and white student 
from obtaining a full knowledge and understanding of 
the group from which he is separated, thereby infringing 
upon the natural rights of an enlightened citizen (S. F. 
315). Second, a feeling of distrust for the minority group 
is fostered in the community at large) a psychological 
atmosphere which is not favorable to the acquisition and 
conduct of an education or for the discharge of the duties 
of a citizen (8. F. 315, 316). Lastly, one of the effects 
of segregation in education with respect to the general



50

community is that it accentuates imagined differences 
between Negroes and whites (S. F. 316). On this point, 
the verbatim text of Dr. Eedfield’s testimony merits 
quotation:

“ These false assumptions with respect to the ex- 
■ istence of those differences are given an appear­

ance of reality by the formal act of physical sepa­
ration. Furthermore, as the segregation, in my 
experience, is against the will of the segregated, 
it produces a very favorable situation for the in­
crease of bad feeling, and even conflict, rather 
than the reverse”  (S. F. 316).

It is clear, then, that in seeking a form of education 
free from any racial restrictions, one wants not only the 
benefits and skills that that education can yield him, but, 
primarily, he desires to live and function as an enlight­
ened citizen in a representative democracy.

2. Qualified educators, social scientists, and other 
experts have expressed their realization of the fact that 
“ separate”  is irreconcilable with “ equality” .61 There 
can be no separate equality since the very fact of segre­
gation establishes a feeling of humiliation and depriva­
tion to the group considered to be inferior.62 The sociolog­
ical and political significance of the practice of segre­
gation is found not only in the deprivations experienced 
by the minority group, but by society at large. In one 
of the most exhaustive studies ever conducted on the sub-

61 Gunnar Myrdal, An American Dilemma, New York, 1944, 
Vol. I, page 580.

Charles S. Johnson, Patterns of Segregation, New York, 1943, 
page 4, 318.

Charles S. Mangum, Jr., The Legal Status of the Negro, 
Chapel Hill, 1940.

62 Carey McWilliams, “ Race Discrimination and the Law , 
Science and Society, Volume IX  Number 1, 1945.



51

ject of segregation, the noted sociologist Gunnar Myrdal
has stated:

“ Segregation and discrimination have had ma­
terial and moral effects on whites, too. Booker T. 
Washington’s famous remark that the white man 
could not hold the Negro in the gutter without 
getting in there himself, has been corroborated by 
many white southern and northern observers. 
Throughout this book, we have been forced to 
notice the low economic, political, legal and moral 

.standards of Southern whites—kept low because 
of discrimination against Negroes and because of 
obsession with the Negro problem. Even the am­
bition of Southern whites is stifled partly because, 
without rising far, it is so easy to remain ‘ super­
ior’ to the held-down Negroes.” 63

There are many other authoritative studies which bear 
out Mr. Myrdal’s observations.64

In addition to the psychological atmosphere of dis­
trust and the practical inequities which result under a 
segregated system, the citizens of both the majority and 
minority groups are deprived of that inter-change of 
ideas and attitudes which is so necessary to a full educa­
tion (S. F. 320, 325).

3. No one questions the kind of separation which the 
community imposes in the interest of public safety, con­
venience or welfare. There is ample justification for 
differences in the treatment of the old and the young, 
the healthy and the sick, the criminal and the law-abiding*. 
In each of these cases the act of separation is justified

63 Gunnar Myrdal, An American Dilemma, New York, 1944, 
Vol. 1, page 644.

64 H. Cantril, Psychology of Social Movements, 1941, pages 
78-122;

Gene Weltfish, Causes of Group Antagonism, Journal of Social 
Issues, Vol. 1.



52

and is motivated by a desire to protect society at large, 
and to promote the interest of both groups.

There is, however, no rational basis, no factual justi­
fication for segregation in education on the grounds of 
race or color. This type of segregation is often rational­
ized on the ground that “ Negroes have an inferior mental 
capacity to whites.”  Yet this premise is completely in­
valid and no act of segregation based upon it can he up­
held as reasonable.65 Scientific studies have, been con­
ducted in which representative samples of both groups, 
Negro and white, have been placed in nearly identical 
situations with identical tasks to perform. The per­
formances of these tasks have indicated the intellectual 
faculties and the capacity to learn of the people being 
tested (S. F. 313, 314). The results of such tests as in­
dicated by the testimony in this case read as follows:

“ The conclusion then, is that differences in in­
tellectual capacity or inability to learn have not 
been shown to exist as between Negroes and whites, 
and further, that the results make it very probable 
that if such differences are later shown to exist, 
they will not prove to be significant for any edu­
cational policy or practice”  (S. F. p. 314).

Moreover, it has been demonstrated, that in cases 
where no segregation exists, or where it has ceased to 
exist, the results have never been disastrous but often

65 The Black and White of Rejections for Military Service, 
American Teachers Association, August, 1944, page 29.

Otto Klineberg, Negro Intelligence and Selective Migration, 
New York, 1935.

J. Peterson & L. H. Lanier, “ Studies in the Comparative 
Abilities of Whites and Negroes” , Mental Measurement Mono­
graph, 1929.

W . W . Clark, “ Los Angeles Negro Cfhildren” , Educational 
Research Bulletin, Los Angeles, 1923.



53

favorable (S. F. 317, 318, 454). In the course of the 
instant trial, one of the expert witnesses, on being ques­
tioned as to the effect of Negro and white students study­
ing together at the University of Chicago, testified:

“ Q. Were there any ill effects at all? A. I 
don’t know of any.

“ Q. Do you know of any good effects? A. 
Yes. Perhaps I should mention a case. The 
students were denied admission, Negro students 
were discouraged from admittance is perhaps a 
more accurate statement, to the laboratory school 
of the University.

“ They were discouraged admission for a great 
many years. Then it was made apparent that they 
would be welcome, and they began to come, and 
there was opposition for a minority of the aca­
demic community to the step. Many evil conse­
quences were told. None of those consequences 
took place, but, on the other hand, there was an 
improvement in the community in that there was a 
representation of the national community which is 
favorable to education, and the relations between 
the white and the Negro groups were improved 
in parent-teacher and endeavor”  (S. F. 317, 318).

Since all available evidence controverts the theory 
that Ne groes have an inferior mental capacity to whites, 
and moreover, since the two groups work well together 
and to their mutual advantage, it must be concluded that 
any claim of inferiority is motivated by a desire to per­
petuate segregation per se.68 66

66 McGovney, Racial Residential Segregation by State Court 
Enforcement of Restrictive Agreement, Covenants or Conditions 
in Deed is Unconstitutional (1945), 33 Cal. L. Rev. 5, 27 (note 
94: “When a dominant race, whether white or Negro, demands 
separation, it is fallacious to say . . . that the intention and effect 
is not to impose a ‘badge of inferiority’ on the other.” )



54

4. It may be that the pattern of segregation which 
has existed in the South for more than fifty years cannot 
be abolished instantaneously. But although the term 
“ gradual”  may be used adjectively in relation to the 
overall pattern, it should not be used as a rationalization 
for inaction at any given instance. Testimony in this 
case has been submitted by an expert witness for the ap­
pellants to the effect that:

“ I think that all change should not come on any 
more rapidly than it is consistent with the gen­
eral welfare”  (S. F. 321).

However, when questioned as to whether it isn’t im­
possible to abolish segregation in a community where it 
has existed for a long number of years (S. F. 321), the 
witness for the appellant testified:

“ A. No I don’t agree to that.
“ Q. Do you think the laws should be changed 

tomorrow ? A. I think that segregation is a matter 
of legal regulation. Such a law can be changed 
quickly . . . Segregation in itself is a matter 
of law, and that law can be changed at once, hut 
if you mean the attitude of the people with re­
spect to keeping away from people of another race, 
then perhaps I have another answer”  (S. F. 321- 
322).
* * ' * . # # # ■ # # #
“ I think in every community there is some seg­
regation that can be changed at once, and the area 
of higher education is the most favorable for mak­
ing that change”  (S. F. 322).

The appellants in this case are fully cognizant of the 
fact that the pattern of segregation has become deeply 
entrenched in the general mores in the South. Yet the



55

basis for a new and forward looking approach exists in 
the record before this Court (8. F. 306-316, 380-476).

New rulings made on the basis of a record which 
shows a pattern of inequality and injustice under our 
Constitution, are not revolutionary but evolutionary.

5. The correlation between segregation and discrim­
ination in education is demonstrated by the evidence in 
this record dealing with the educational system of the 
State of Texas. It is no accident, no coincidence, that 
wherever segregation is decreed and enforced, there you 
will find inequality. A large section of the testimony in­
troduced before the Trial Court proves emphatically that 
in this state, where the Negro and the white schools are 
separated, the Negro schools are inferior and inadequate 
in every significant respect.

Dr. Charles H. Thompson, an authority in education 
whose unexcelled qualifications as an expert witness are 
amply set forth in the record (S. F. 380-387) made a 
documented, scientific study of the comparative educa­
tional facilities for Negroes and whites in Texas at the 
request of this appellant (S. F. 388). Analyzing the 
situation on the basis of the best recognized criteria, 
Dr. Thompson found, in substance:

(a) Physical Facilities.

The combined asset value of the plant facilities of the 
thirteen white state-supported schools above high school 
level is in excess of $72,000,000; that of Prairie View, 
the only Negro school of “ higher learning” , is slightly 
more than $4,000,000 ( 8. F. 401). This is less than half 
of the proportionate amount which would be allocated on 
the basis of the Negro population of the state. On a per



56

capita basis, $12.88 was invested in plant assets for every 
white person in Texas, $4.71 for every Negro (S. F. 402). 
The per student appropriation at Prairie View is much 
less than that found to exist at small white teachers 
colleges (S. F. 414-415). Texas provided through state- 
supported institutions for 66.8% of its white college 
students, only 31.8% of her Negro students in Senior 
colleges (S. F. 418).

(b) Current Expenditures.

In 1943-44, Texas appropriated $11,071,490 in State, 
County and District funds for higher education in Texas. 
They appropriated $10,858,018 to white institutions—i. e., 
$1.98 per capita to every white citizen. They appropriated 
$213,472, or $.23 per capita, to every Negro in the popu­
lation (S. F. 410). The white institutions, then, got 8.06 
times as much as did the Negro institutions.

(c) Curriculum,.

In Texas there are 106 under-graduate fields of 
specialization in the white state-supported institutions, 
and 49 in the Negro institution, Prairie View (S. F. 424). 
Texas A. & M., a white state-supported institution, offers 
45 fields of specialization as compared with 13 offered by 
Prairie View, a ratio of more than 3 to 1. On the other 
hand, a number of sub-collegiate high school trade courses 
are given at the Negro university, Prairie View, such as 
mattress making, auto mechanics, carpenting, laundering 
and dry cleaning, etc. (S. F. 425). These skills are usu­
ally taught in high schools or lower vocational schools 
(S. F. 425). On the graduate level, the investigation 
reveals that a total of 159 Negroes received graduate 
degrees during approximately a five-year period, as con-



57

trasted with some 3,000 white students who received 
graduate degrees in the same period (8. F. 427). More­
over, the range of subjects in white graduate schools is 
considerably wider:

“ The National Survey of Higher Education for 
Negroes . . . , a U. S. Office publication, indicated 
in 1942 that the Texas state-supported higher in­
stitutions for whites offered graduate work in 65 
fields, and 5 for Negroes”  (S. F. 428).

The University of Texas, at the present time, gives 10 
different types of graduate degrees in 40 fields. Prairie 
View gives-a Master’s Degree in 13 fields (S. F. 428).

(d) Faculty.

In comparing the faculty of white and Negro schools 
of higher learning, in Texas, two key factors must be con­
sidered, namely, salary and training (S. F. 434). In 
order to attract and retain a good teaching staff, faculty 
members must be paid good salaries and find the work­
ing conditions satisfactory. Dr. Thompson’s study dis­
closed that twenty-five well-prepared and able teachers 
were lost to other institutions within the past five years 
because of the inability of Prairie View to match their 
salary offers (S. F. 436). It further revealed that the 
median salary of a full professor in Prairie View is 
$2,025.00, while the lowest salary paid to a full professor 
in a state-supported white college is $2,700 (S. F. 436).

As to training, the picture is identical. In 1945-46, 
only 9.3% of the faculty members of Prairie View had 
degrees of the doctorate level (S. F. 438).



58

(e) Library.

The University of Texas library has 750,974 titles. 
Prairie View has 25,000. Even a white college with a 
smaller student body (1,205 students), such as East State 
Teachers College, had 81,974 volumes in 1945-46; Prairie 
View had 25,000 volumes for 1,619 students (S. F. 439). 
The library of one Negro college was found by an im­
partial survey committee to be inadequate even for under­
graduates, not to speak of its complete inability to meet 
the needs of its graduate students (S. F. 441).

(f) Standing in the Educational World and Com­
munity.

Prairie View is not accredited by The Association of 
American Universities or by any of the national profes­
sional councils (S. F. 442). It is regarded as a “ poor 
college” ; it is not a “ real university”  (S. F. 444).

A Negro student there cannot get the type of under­
graduate or graduate education that is available to the 
white student (S. F. 443-444).

The same conditions which exist in the undergraduate 
field are emphasized and brought into sharper relief in 
the graduate sphere. In the five-year period from 1939 
to 1943 only 159 Negroes received graduate degrees as 
compared with more than 3000 white students during the 
same period (S. F. 427). The University of Texas and 
A. & M. College of Texas, between the period of 1940 
and 1945 gave 212 doctorates. Now, if a Negro wishes 
to obtain a Doctor’s Degree in the State of Texas, the 
only recourse he has in so doing is through what is ad­
mittedly an inadequate scholarship fund (S. F. 429).



59

It might also be well to note, at this point, the state­
ment of one of appellee’s own expert witnesses, who, 
upon direct examination stated:

“ I am unable to think for the moment of colored 
institutions and white institutions which do have 
equal facilities with which I have been associated”  
(8. F. 547).

6. The inferiority of professional and higher edu­
cation available to Negroes in Texas makes itself di­
rectly felt in the woeful lack of qualified professional 
men in the Negro community of Texas.

In the year 1940, there was, in the State of Texas, 
one white doctor to every 903 of the white population, 
and one Negro doctor to every 5,637 of the Negro popu­
lation. Thus there were more than six times as many 
doctors in proportion to the white population as there 
were Negro doctors in proportion to the Negro popu­
lation (S. F. 420, 421). The dearth of Negro pro­
fessionals in the South does not stem from any lack of 
desire for professional education on the part of these 
citizens, but is the direct result of the artificial limita­
tions placed on their educational opportunities. Thus, 
in Tennessee, where a minimum of opportunity was af­
forded by the Meharry Medical School, there are almost 
three times as many Negro doctors as there are in Texas.

A parallel situation exists in the case of dentists. In 
1940 there was in the State of Texas one white dentist to 
every 2,886 of the white population, and one Negro den­
tist for every 11,412 of the Negro population (S. F. 421). 
When we compare the ratio in the State of Tennessee, 
where Meharry Dental School admits Negroes, there are 
twice as many Negro dentists as there are Negro dentists



60

in Texas. And in the District of Columbia, where How­
ard University admits Negroes to the dental school, there 
are four, times as many dentists as there are in Texas 
(8. F. 422).

Statistics in reference to the number of Negro engi­
neers bear out this same pattern.

But in the case of lawyers, we have the most graphic 
illustration of what the denial of professional education 
to Negro citizens can mean. In 1940, in the State of 
Texas, the ratio of white lawyers to the white population 
was one to every 712, whereas the ratio of Negro lawyers 
to the Negro population was one to 40,191 (S. F. 423-).

7. The conditions summarized authoritatively by Dr. 
Thompson and other witnesses at the trial are by no 
means peculiar to Texas. They exist in Louisiana, in 
Alabama, in Mississippi, the whole South. They exist 
wherever and whenever there is enforced “ legal”  segre­
gation.

That this critical situation is not peculiar to Texas 
alone but is an inevitable result of the policy of racial 
segregation and discrimination in education is demon­
strated by an analysis made by Dr. Thompson.67 He 
states that:

“ In 1940 there were 160,845 white and 3,524 Negro 
physicians and surgeons in the United States. In 
proportion to population these represented one

67 Charles H. Thompson, “ Some Critical Aspects of the Prob­
lem of the Higher and Professional Education for Negroes,” 
Journal of Negro Education (Fall, 1945).



61

physician to the following number of the white and 
Negro population, respectively:

Section White Negro
U. S___________ X_____  735 3,651*
North  _______ _ ______  695 1,800*
South  ________________  859 5,300*
W est_________________  717 . 2,000*
Mississippi ___________  4,294 20,000*
“ Law—in 1940 there were 176,475 white and 1,052 
Negro lawyers in the U. S. distributed in propor­
tion to population as follows:

Section White Negro
TT. 8. 670 12,230'

4,000'North ________________  649
South. ______  711 30,000'

4,000'
358,000'

Wost 699
Miss.___________ ______  4,234

“ There are 18 times as many white lawyers as 
Negro lawyers in the country as a whole; 45 times 
as many in the South; and 90 times as many in 
Mississippi. Even in the North and West there 
are sis times as many white lawyers as Negro. 
With the exception of engineering, the greatest 
disparity is found in law.”

The record of this policy of educational segregation 
and denial of professional education to Negroes is clear. 
In the 17 * 68 states and the District of Columbia in 1939- 
1940 the following number of states made provisions for

* T o  the nearest hundred.
68 The seventeen states which require segregation in the school 

system are: Alabama, Arkansas, Florida, Delaware, Georgia, 
South Carolina, North Carolina, Texas, Tennessee, Missouri, Mis­
sissippi, Maryland, Virginia, West Virginia, Oklahoma, Louisiana, 
Kentucky and the District of Columbia.



6 2

the public professional education of Negro and white 
students: 60

Profession White Negro
Medicine __________ ______  15 0
Dentistry__________ ______  4 0
Law_______________ ______  16 1
Engineering _______ ______  17 0
Social Service _____ ______  9 0
Library Science____ ______  13 1
Pharmacy _________ ______  14 0

The result has been that the qualified Negro student 
is unable to obtain the professional education for which 
he may be fitted by aptitude and training.

The implications of all this evidence are overwhelm­
ing. The facts are these: whenever and wherever seg­
regation in education is practiced under state sanction, 
there is admitted and flagrant discrimination in the treat­
ment of the Negroes. Discrimination and inequality fol­
low inevitably and inexorably from the mere fact of segre­
gation. The record not only of this case but of the educa­
tional experience of the nation demonstrates that where 
schools are separated on racial grounds, there must be 
inequality. “ Separate and equal”  is a legal fiction to 
which the states give only casual lip service. This record 
throughout and the experience of the teaching profession 
demonstrate that there is an inherent and fundamental 
contradiction between “ segregation”  and “ equality.”  
However valid in theory, it is apparent that in practice, 
in this case and in thousands of others, the Negro who 
honestly seeks learning cannot get it in a “ separate”  
school.

69 Based on data in National Survey of Higher Education for 
Negroes, Vol. II, page 15, 1942.



63

Conclusion

Appellant has conclusively proved that the right to 
equal protection guaranteed him under the Fourteenth 
Amendment can only be secured by his admission forth­
with to the University of Texas School of Law. It has 
been clearly established herein both by appellant and by 
appellees that the “ equal hut separate”  doctrine on 
which the constitutional and statutory requirements for 
segregated schools in Texas are based is an invalid hy­
pothesis. This record demonstrates that one cannot 
recognize the requirement of equal treatment as a valid 
principle and simultaneously defend the practice of 
racial segregation.

Fundamental to our American tradition is the belief 
in individual, racial and religious equality. This belief 
has been embodied in our constitutions, enacted into our 
statutes and carefully protected and preserved in our 
court decisions. Texas and other southern states have 
attempted to perpetuate a segregated system. They 
have rejected the fundamental premise of equality and 
in reality believe that Negroes hold and must necessarily 
retain a status inferior to whites. This rejection of a 
concept considered basic to our system is given legal 
status by a theory which purports to be founded upon 
the premise of equality. A choice must be made between 
these two conflicting concepts. Our Constitution and 
laws make clear that only one choice can be made.

Wherefore, it is respectfully submitted that this Court 
reverse the judgment of the Court below refusing appel­
lant’s application for writ of mandamus against appel-



64

lees requiring them to admit him to the University of 
Texas School of Law.

W. J. D u r h a m  of Dallas 
T h urg o o d  M a r s h a l l  of New York 
Attorneys for Appellant.

By: ....---------------

J .  M . N a b r it  
C . B .  B u n k l e y , J r .
H . M . B e l l in g e r  
R o b e r t  L. C a r t e r

Of Counsel.

The rule has been complied with and 
a copy of this brief has been delivered 
to the Honorable Price Daniels, At­
torney General of the State of Texas

By





V

\



States

//

October Term , 1949

/ /
No. 44

H em a n  M arion Sw eatt , Petitioner

v .

Theophilus Shickel  Painter , et al ., Respondents

BRIEF FOR RESPONDENTS

Price Daniel 
Attorney General of Texas

Joe R. Greenhill
First Assistant Attorney General

E. Jacobson
Assistant Attorney General 

Attorneys for Respondents.





SUBJECT MATTER INDEX

Page
Preliminary Statement ___________________________ 1
Statement of the Case____________ _______________  4
First Point: Section 7 of Article VII of the Texas Con­

stitution and related statutes providing that the 
State shall furnish equal education to its Negro and 
white students in separate schools are constitutional. 
The power of the State to so classify and the reason­
ableness of this classification have been settled as a
matter of law by this Court as not violative of the 
equal protection clause of the Fourteenth Amend­
ment _________________________________________  9

United States Supreme Court Decisions________  10
1. Hall v. DeCuir_________________________ 10
2. Plessy v. Ferguson_____________________ 12
3. Cumming v. Board of Education_________  15
4. Chesapeake & Ohio Ry. v. Kentucky_______ 16
5. Berea College v. Kentucky______________  17
6. Chiles v. Chesapeake & Ohio Ry_________  18
7. McCabe v. A. T. & S. F. Ry______________  20
8. Gong Lum v. Rice______________________ 21
9. Missouri ex rel. Gaines v. Canada_______  23

Other Federal and State Court Cases___________  28
Petitioner’s Cases Distinguished____________   31

Pearson v. Murray_________________________ 32
Civil and Political Rights Cases_____________  33
The Chinese and Japanese Exclusion Cases___  35
The Property Ownership Cases_____________  37
The Interstate Commerce Cases____________  40

Argument __________________________________ 42
Second Point: The background and contemporaneous 

construction of the Fourteenth Amendment sustain 
this Court’s interpretation that under the Amend­
ment the States may furnish equal education to their
Negro and white students in separate schools_____  43

Argument and Authorities___________________  43
A. Congressional Action Before, During, and 

After the Adoption of the Fourteenth



iv S u b j e c t  I n d e x

in the Classification Made by Texas, the 
Southern States, and the Congress, Then, 
and Only in That Event, Respondents Are 
Entitled on a New Trial to Fully Develop 
That Proposition_______________________ 98

Fourth Point: The fact question of whether Petitioner 
was offered equal facilities is not properly before this 
Court because Petitioner did not present it to the 
Texas appellate courts for review. But assuming the 
issue to be properly before the Court, there is ample 
evidence to support the trial court’s findings of fact 
and judgment--------------------------------------------------  100

1. The Fact Question As to the Equality of the
Two Law Schools is Not Properly Before This 
Court___________________________________  100

2. Assuming the Fact Question of the Equality of
the Schools is Properly Before the Court for 
Determination, There is Substantial Evidence 
to Support the Fact Findings of the State’s 
Trial Court______________________________ 107

Entrance, Examination, Graduation, and
Similar Requirements_________________ 108

The Faculty___________________________ 109
Curriculum____________________________ 110
Classroom_____________________________ 110
Library _______________________________ 111
The Physical Facilities__________________ 113

Addendum______________________________________  119
Supervening Facts_____________________________ 120

1. Accreditation ____________________________ 120
2. Library _________________________________ 121
3. Student Body____________________________ 121
4. Physical Facilities ____________________  122

Photographs of Texas State University____ opposite 122
Summary and Conclusion__________________________ 123

Page



THE APPENDIX

First Section
The Background and Contemporaneous Construction of 

the Fourteenth Amendment Sustain the States in 
Their Power to Regulate Their Schools Including the
Right to Have Separate Equal Schools for White and 
Negro Students —-_____________________________  128

I. Congressional Action: History of Statutes Re­
lating to Schools and Civil Rights and of the 
Adoption of the Fourteenth Amendment_____  128
A. The Period 1861-1865 Preceding the Pro­

posal of the Fourteenth Amendment During 
Which Time Congress Established Separate 
Schools in the District of Columbia_______ 128

B. The Period of the Adoption of the Four­
teenth Amendment, 1866-1868__________  129

1. The First Supplemental Freedmen’s
Bureau Bill_________________    130

2. The Civil Rights Act of 1866______  133
3. The Congressional Resolution Propos­

ing the Fourteenth Amendment____  139
4. Acts of Congress Relating to Separate

Schools in the District of Columbia_ 151
C. The Period Immediately Following the 

Adoption of the Fourteenth Amendment in
1868 _________________________________ 153

1. Acts of Congress Relating to Separate
Schools in the District of Columbia_ 153

2. The First and Second Enforcement
Acts, 1870 and 1871______________  156

3. The Unsuccessful Attempt to Enact
Forced Mixed Schools as Part of a 
Civil Rights Amendment to The Gen­
eral Amnesty Bill_______________   157

4. Debates on the Federal Aid to Edu­
cation Bill _____________________  164

5. Sumner’s Attempt to Force Mixed
Schools in the District____________  165



vi Subject Index

D. Action and Debates on the Civil Rights Bill
of 1875, from the Operation of Which. Public 
Schools Were Excepted_________________ 167

1. In the House of Representatives, 43rd
Congress, 1st Session, 1873-1874____ 167

2. In the Senate, 43rd Congress, 1st Ses­
sion ____________________________ 173

3. In the 43rd Congress, 2nd Session,
1875 _______     180

E. The Present Acts of Congress Providing for
and Recognizing Separate Schools_______  186

1. Congress Has Continued to Maintain
Separate Schools in the District of 
Columbia________________________ 186

2. Grants to Separate Land-Grant Col­
leges ____________________________ 187

3. Grants from National School Lunch
Act to Separate Schools-__________  193

II. Construction of the Fourteenth Amendment by
the State Legislatures_______  _______________194

III. Contemporaneous Construction of the Four­
teenth Amendment and the Civil Rights Acts by 
the State and Federal Courts________________ 200

Second Section
Other Federal and State Court Decisions That the State 

May Furnish Education to White and Negro Students 
at Separate Institutions_________________________ 211

Third Section
Miscellaneous Matters

1. Announcement of Approval of Negro Law School
by American Bar Association_________________ 224

2. Statement of American Bar Association Regard­
ing Approval of Negro Law School____________ 225

3. Announcement by American Association of Law
Schools that the Negro Law School Met Its 
Standards _________________________________ 227

Page



Subject Index vii
Page

4. Certificate of Texas Supreme Court Concerning
the Admission to the Bar of Henry E. Doyle__  227

5. Answer of Attorney General of Texas to Request
of Federal Council of Churches for Consent to 
File Amicus Brief___________________________ 228

6. Texas Poll of 1950_________________________  231
7. The 1950 Act of the Texas Legislature Requiring

Separation of White and Negro Citizens in the 
State Parks________________________________ 234



TABLE OF AUTHORITIES

Ccis0s
Adamson v. California, 332 U. S. 46______ 46, 48, 51,147
Akins v. Texas, 325 U. S. 398___________________ 33,104
Baldridge v. Scott, 48 Tex. 178_________________ 101
Barrett v. Cedar Hill S. D., 85 So. 125___________ 219
Bartemeyer v. Iowa, 18 Wall- 129_______________ 177
Berea College v. Kentucky, 211 U. S. 45_________ 17
Bertonneau v. Board of Directors,

3 Fed. Cas. 294_____________________________207, 214
Bird v. Pace, 26 Tex. 487_______________________ 101
Blodgett v. Bd. of Ed., 30 S. E. 561______________ 216
Bluford v. Canada, 32 F. Supp. 707______________ 212
Board of Education v. Bunger, 41 S. W. 2d 931__  217
Board of Education v. Cumming, 29 S. E. 488____  216
Bob-Lo Excursion Co. v. Michigan, 333 U. S. 28___ 41
Bolin v. Nebraska, 176 U. S. 83__________________ 106
Bond v. Tij Fung, 114 So. 332_________________ 119
Bonitz v. Trustees, 70 S. E. 735------------------------  220
Boyer v. Garrett, D. C. Md., Dec. 30, 1949------------ 212
Brown v. Board of Trustees, LaGrange Ind.

School Dist., S.D. Tex., Feb. 16,1950__________  211
Brown v. Mississippi, 297 U. S. 278-------------------  35
Brown v. Piper, 91 U. S. 37-------------------------------- 107
Brunson v. North Carolina, 333 U. S. 851-------------  33
Bryant v. Barnes, 106 So. 113_________________ 219
Buchanan v. Warley, 245 U. S. 60----------------------  40
Burnside v. Douglas School, 261 Pac. 629_________ 215
Carr v. Corning, C.A. D.C. Feb. 14, 1950._____ 28, 71,186
Carter v. School Board, 87 F. Supp. 745_________  212
Carter v. Texas, 177 U. S. 442___________________ 33
Chambers v. Florida, 309 U. S. 227__________ ____ 35
Chapman v. King, 154 F. 2d 460_________________ 35
Chase v. Stephenson, 71 111. 383_________________ 210
Chesapeake & Ohio Ry. v. Kentucky, 179 U. S. 388_. 16, 42
Chicago, B. & Q. R. Co. v. Railroad Commission,

237 U. S. 220_______________________________  106
Chiles v. Chesapeake & Ohio Ry., 218 U. S. 71_18, 33, 42, 74
Chrisman v. Town of Brookhaven, 70 Miss. 477-----  219
Civil Rights Cases, 109 U. S. 3---------------------- 63,159,167
Clark v. Board of Directors, 24 Iowa 266------- 174, 198, 210
Clark v. Williard, 294 U. S. 211_________________ 106
Commonwealth v. Williamson, 30 Leg. Int. 406.—67, 204, 222
Corbin v. School Board, 84 F. Supp. 253-------------  211
Corbin v. School Board, 177 F. 2d 924__________  211

Page



Page
Cory v. Carter, 48 Ind 327______________  68,139, 204, 216
Cumming v. Board of Education, 175 U. S. 528_15, 22,123
Dallas v. Fosdick, 40 How. Prac. 249_____  67,139, 201, 220
Dameron v. Bayless, 126 Pac. 273______________  215
Daviess County Board v. Johnson, 200 S. W. 313__  218
Day v. Atlantic Greyhound, 171 F. 2d 59________  92
DeWitt v. Brooks, 143 Tex. 122________________  102
Dove v. Ind. School Dist., 41 Iowa 689__________  210
Eastham v. Hunter, 98 Tex. 560________________  102
Eubank v. Boughton, 36 S. E. 529______________  223
Ex Parte Endo, 323 U. S. 283________ :_________ 37
Fisher v. Hurst, 333 U. S. 147__________________ 26
Franklin v. South Carolina, 218 U. S. 161------------ 33
Gong Lum v. Rice, 275 U. S. 78_____ 21, 34, 42, 45, 74,123
Grady v. Board of Education, 147 S. W. 928_____  218
Gray v. Luther, 195 S. W. 2d 434________________ 101
Greathouse v. School Board, 151 N. E. 411______  216
Greenwood v. Rickman, 235 S. W. 425__________  222
Grovey v. Townsend, 295 U .S. 45______________  35
Gulf, C. & S. F. Ry. v. Dennis, 224 U. S. 503______  119
Hall v. DeCuir, 95 U. S. 485_____________ 10,19, 73,123
Harrison v. Riddle, 36 P. 2d 984________________  215
Hamilton v. Regents of the University of Califor­

nia, 293 U. S. 245__________________________  39
Highsmith v. Tyler State B. & T. Co.,

194 S. W- 2d 142___________________________  101
Hill v. Texas, 316 U. S. 400____________________  33
Hirabayashi v. U. S., 320 U. S., 81_____________  37
Hunter Co., Inc. v. McHugh, 320 U. S. 222_______  106
Jordan v. Brophy, 41 Tex. 283_________________  101
Jumper v. Lyles, 185 Pac. 1084____________ ____  222
Johnson v. Board of Ed., 82 S. E. 832___________  220
Johnson v. University of Kentucky, 83 F. Supp. 707 212
Jennings v. Board of Trustees, Hearne Ind. School

District (W.D. Tex. 1948, Unreported)_______  211
Korematsu v. U. S., 323 U. S. 214_______________  37
Lane v. Wilson, 307 U. S. 268__________________  35
Lee v. Mississippi, 332 U. S. 742_______________  35
Lehew v. Brummell, 15 S. W. 765______________  219

Table of Authorities ix



X Table of Authorities

Lowery v. School Trustees, 52 S. E. 267__________ 221
Lyons v. Oklahoma, 322 U. S. 596_______________ 85
Maddox v. Neal, 45 Ark. 121___________________ 215
Martin v. Board of Education, 26 S. E. 348_____ 210, 223
McCabe v. A. T. & S. F. Ry. Co., 235 U. S. 15L___ 20, 44,107
McCollum v. Board of Education, 333 U. S. 203__  71
McGoldrick v. Compagnie Generale Transatlan-

tique, 309 U. S. 430__________________________ 104
McMillan v. School Committee, 107 N. C. 609_.___L 221
Missouri Ex Rel. Gaines v. Canada,

305 U. S. 337___________________23, 43, 45, 75,107,124
Missouri Ex Rel. Wabash Ry. v. Public Service

Comm., 273 U. S. 126________________________ 119
Missouri (Gaines) v. Canada, 344 Mo. 1238_______ 25
Moore v. Dilworth, 142 Tex. 538________________ 103
Moore v. New York, 333 U. S. 565_____________  33
Morgan v. Virginia, 328 U. S. 373----------------------  40
Mullins v. Belcher, 134 S. W. 1151_____________  218
New York v. Klienert, 268 U. S. 646_____________ 106
Nixon v. Condon, 286 U. S. 73__________________ 35
Nixon v. Herndon, 273 U. S. 536___________ -___  35
Oyama v. California, 332 U. S. 633_______________ 37
Patrick v. Smith, 90 Tex. 267----------------------------- 102
Patterson v. Alabama, 294 U. S. 600_____________ 119
Patton v. Mississippi, 332 U. S. 463_____________  33
Pearson v. Murray, 169 Md. 478------------------------  32
People v. Board of Education, 18 Mich. 400--------- 210
People v. Easton, 13 Abb. (N.Y.) Pr.

(N.S.) 159_________ _____________________67, 203, 220
People v. Gallagher, 93 N. Y. 438____________67, 208, 220
People v. School Board of Borough of Queens,

161 N. Y. 598_____________________________30, 67, 220
Pierre v. Louisiana, 306 U. S. 354_______________ 33
Pitts v. Board of Trustees, 84 F. Supp. 975----------  212
Plessy v. Ferguson, 163 U. S. 537_____ 10,12, 22, 34, 42, 73
Prowse v. Board of Education, 120 S. W. 307------ 218
Puitt v. Gaston, 94 N. C. 709____________________ 221
Railway v. Brown, 17 Wall. 445_________________ 13
Railroad Comm, of Texas v. Mackhank Pet. Co.,

144 Tex. 393_______________________________ 1°3
Reynolds v. Board of Education, 72 Pac. 274--------- 217

Page



Table op Authorities xi

Page
Rice v. Elmore, 165 F. 2d 387___________________  35
Rich v. Ferguson, 45 Tex. 396_________________  101
Richardson v. Board of Education, 72 Kan. 6 2 9 _ _ _ 217
Roberts v. Boston, 5 Cush. (Mass.) 198_________ 162,218
Robinson & Co. v. Belt, 187 U. S. 41____________  106
Schelb v. Sparenberg, 133 Tex. 17_____________  103
School District v. Board, 275 Pac. 292___________  222
Shelley v. Kraemer, 334 U. S. 1________________  38
Simmons v. Atlantic Greyhound Corp.,

75 F. Supp. 166___________________________  92
Sing v. Sitka School Bd., 7 Alaska 616______ ____ 214
Sipuel v. Board of Regents, 332 U. S. 631______  26, 28, 43
Slaughter House Cases, 16 Wall. 36____________  40
Smith v. Allwright, 321 U. S. 649______________  35
Smith v. Board of Directors, 40 Iowa 518________ _ 210
Smith v. Robersonville, 53 S. E. 524___________  221
Smith v. Texas, 311 U. S. 128___________________ 33
Sonora Realty Co. v. Fabens Townsite & Improve­

ment Co., 13 S. W- 2d 965__________________  102
Sovereign Camp, W.O.W. v. Patton, 117 Tex. 1----  103
State v. Albritton, 224 Pac. 511________________  222
State v. Bd. of Directors, 242 S. W. 545________  215
State v. Bd. of Education, 7 Ohio Dec. 129------------ 221
State v. Bd. of School Commissioners, 145 So. 575„ 214
State v. Bd. of Trustees of Ohio State University,

126 Ohio St. 290____________________________ 30, 94
State v. Bryan, 39 So. 929__________ -______________  216
State v. Cartwright, 99 S. W. 48_____ :--------------  219
State (Bluford) v. Canada, 348 Mo.. 298-------------  213
State (Gaines) v. Canada, 344 Mo. 1238________  25
State v. Duffy, 7 Nev. 342_________________ 200, 203, 221
State v. Gray, 93 Ind. 303____________________  217
State v. Grubbs, 85 Ind. 213___________________  217
State v. McCann, 21 Ohio St. 198____ 67,162,174, 202, 221
State v. Wirt, 177 N. E. 441___________________  217
State (Michael) v. Witham, 179 Tenn. 250______  213
Steele v. L. & N. Ry. Co., 323 U. S. 192_________  36
Strauder v. West Virginia, 100 U. S. 303-----------  33, 34
Sweatt v. Painter, 210 S. W. 2d 442 (1948)--------- 8
Takahashi v. Fish and Game Commission,

334 U. S. 410_____________________________  36
Truax v. Raich, 239 U. S. 33__________________  36



Table of Authorities

Tucker v. Blease, 81 S. E. 668__________________ 222
Tunstall v. Brotherhood, 323 U. S. 210__________ 36
United States v. Buntin, 10 Fed. 730___________  214
United States v. Classic, 313 U. S. 299___________ 35
United States v. Dern, 289 U. S. 352____________  120
Villa v. Van Schaick, 299 U. S. 152_____________ 119
Wall v. Oyster, 36 App. D.C. 50________________ 215
Ward v. Flood, 48 Cal. 36___________________67, 207, 215
Ward v. Texas, 316 U. S. 547___________________ 35
Watts, Watts & Co. v. Unione Austriaca, 248 U. S. 9 119
Waugh v. Mississippi, 237 U. S. 589_____________ 39
White v. Texas, 309 U. S. 631, 310 U. S. 530_____  35
Whitford v. Board, 74 S. E. 1014_____ 1_________  221
Williams v. Zimmerman, 192 Atl. 353----- _-----------  218
Willoughby v. Chicago, 235 U. S. 45-------------------  106
Wilson v. Cook, 327 U. S. 474__________________ 106
Wisdom v. Smith, 146 Tex. 420------------------------  102
Wong Him v. Callahan, 119 Fed. 381----------------  214
Wright v. Board of Education of Topeka,

284 Pac. 363_______ -______________________  217
Wrighten v. University of South Carolina,

72 F. Supp. 948_____________ _____ ________  212
Yick Wo v. Hopkins, 118 U. S. 356______________ - 35

UNITED STATES CONSTITUTION AND STATUTES
U. S. Constitution, Article XIV------------- 23, 33, 46, 51,139
D.C. Code, Sec. 31-109_________________________ 64,187
D.C. Code, Sec. 31-1110________________________ 64,187
D.C. Code, Sec. 31-1111________________________ 187
D.C. Code, Sec. 31-1112________________________ 187
D.C. Code, Sec. 31-1113________________________ 187
12 Stat. 394 (1862)_______________________ —  128
12 Stat. 407 (1862)_________________________  129
12 Stat. 503 (1862)___________________________  188
12 Stat. 537 (1862)_________________________  129
13 Stat. 187 (1864)___________________________  49,129
14 Stat. 27 (1866)_________________________39,133,138
14 Stat. 216 (1866)_________________________  152

xii

Page



Table of Authorities xiii

Page
14 Stat. 343 (1866)__________________________  151
16 Stat. 3 (1869)_____________________________ 33
16 Stat. 140 (1870)___________________________ 156
18 Stat. 343 (1866)__________________________  53
20 Stat. 107 (1878)__________________________  186
22 Stat. 142 (1882)___________________________ 186
24 Stat. 440 (1887)__________________________  188
28 Stat. 693 (1885)___________________________ 186
34 Stat. 316 (1906)__________________________  186
60 Stat. 233 (1946)__________________________  64,194
7 U. S. Code, § 323_________________________ _ 64,187

STATE CONSTITUTIONS AND STATUTES
(Because of the great number of statutes and Con - 

stitutions referred to, this Index will not list each 
different statute separately, with the exception of 
those of Texas, but will refer to the page number 
on which the laws of the States are mentioned.)

Page
California: Laws_____________________  195
Connecticut: Laws_____________________  199
Delaware: Constitution_______________  195

Laws_____________________ 195
Illinois: Laws_____________________  199
Indiana: Laws_____________________  195
Iowa: Laws_____________________  198
Kansas: Laws_____________________  196
Kentucky: Constitution_______________  196

Laws_____________________ 196
Maine: Laws_____________________  199
Maryland: Laws_____________________  196
Massachusetts: Laws_____________________  199
Michigan: Laws_____________________  199
Minnesota: Laws_____________________  199
Missouri: Constitution_______________196,197

Laws____________________  197
Nebraska: Laws_____________________  198



XIV Table of Authorities

Page
Nevada: Laws_______________ ____  200
New Hampshire: Laws_____________________ 198
New Jersey: Laws_______________ _____ 197
New York: Laws____________________  30,197
Ohio: Laws_____________________197,198
Oregon: Laws_____________________ 198
Pennsylvania: Laws_______________ _____ 200
Rhode Island: Laws_______________ _____ 198
Texas: Constitution

Sec. 7, Art. VII____ ____  4, 9
Sec. 14, Art. VII___ _____  4

Laws
H. B. 780, 50th Leg., 1947_ 5
S. B. 140, 50th Leg., 1947- 5
S. B. 19, 51st Leg.,

1st C. S„ 1950___ .__ 77, 92, 234
Rule 476, Tex. Rule

Civ. Pro_________ _____ 102,103
Vermont: Laws_______________ 198
West Virginia: Laws----------------------- 198
Wisconsin: Laws_______________ 199

MISCELLANEOUS
Annual Cyclopedia 1871 (1872)—— -----------------  157
Annual Cyclopedia 1872 (1873)-------------------------- 159
Biographical Directory of the American Congress

1774-1927 _________________________________  48
Bi-Racial Conference on Education for Negroes in

Texas, The Senior Colleges for Negroes in Texas 84
II Blaine, Twenty Years in Congress (1874)----130,163,174
Bond, Education of the Negro in the A,merican

Social Order (1934)--------------------------------------  95,199
Boyd, Some Phases of Educational History in the 

South Since 1865, Studies in Southern History—
(1940) ---------------------- ------------------------------  95

Dabney, The Negro and His Schooling,
The Atlantic Monthly (April, 1942)---------------  81



Table of Authorities xv

Fail-man, Does the Fourteenth Amendment Incor­
porate the Bill of Rights? The Orignial Under­
standing, 2 Stanford Law Rev. 134 (1949)____  53,150

Flack, The Adoption of the Fourteenth Amendment
(1908) _________ ____39,130,133,139,150,160,169,180

II Fleming, Documentary History of Reconstruc­
tion (1907) ________________________________ 156

Garner, Reconstruction in Mississippi (1901)_______ 48
Higher Education for American Democracy. A Re­

port of the President’s Commission on Higher 
Education, Vol. II___________________________    82

Ingle, The Negro in the District of Columbia
(1893) ___________________________129,153,154,186

James, II Charles W. Eliot (1930)______________  89
Kendrick, The Journal of the Joint Committee of 

Fifteen on Reconstruction (1914)_51,139,140,142
Loescher, The Protestant Church and The Negro

(1948) -----------------------------------------------------  88
McPherson, Political History of the U. S. (1875)_ 156
Murray, Negro Handbook (1949)_________  197
Myrdal, Ayi American Dilemma (1944)____  88
National Survey of Higher Education of Negroes,

General Studies of College for Negroes,
Misc. No. 6, Vol. II____________________  78

Pierce, Memoirs and Letters of Charles Sumner
(1893) ------------------------------------------------------ 152,163

Proceedings of the Trustees of the Peabody Educa­
tional Fund, Oct. 1874 (1875)__________  95

II Reports of the Committees of the House,
39th Cong., 1st Sess_______________143,144,145

Special Report of Commissioner of Education
(1871) ___________________________________ 129

Stephenson, Race Distinctions in American Law 
(1910) ________________________________

Page

89



XVI Table of Authorities

Page
Stone, Studies in the American Race Problem

(1908) ____________________________________  93
Storey, Charles Sumner (1900)_________________152,163
36 Survey Graphic, January, 1947______________ 88
The Texas Poll, Jan. 26, 1947________..._________  85
The Texas Poll, March 18, 1850________________ 86, 281
Thompson, Separate But Not Equal, The Sweatt

Case, 33 Southwestern Review 105 (1948)_____ 75
To Secure These Rights. The Report of the Presi­

dent’s Committee on Civil Rights, U. S. Govern­
ment Printing Office, 1947___________________ 83

11 Works of Charles Sumner (1875)_____________ 152



IN THE

(Emirt of the States
October Term , 1949

No. 44

Hem an  M arion Sw eatt , Petitioner

v .

T heophilus Shickel  Painter , et al ., Respondents

BRIEF FOR RESPONDENTS

Preliminary Statement

The Court in many decisions has held that the 
States, which are under no duty under the Federal 
Constitution to furnish education to anyone, may 
provide education at their own expense for their 
white and Negro students in separate schools so long 
as equal facilities and advantages are offered both 
groups.

These holdings are eminently correct and should 
be followed. They rightly interpret the intention of 
Congress which proposed the Fourteenth Amend­
ment and of the Legislatures of the several States



— 2—

which adopted it. This Court has correctly decided 
that the education of the people in schools by State 
taxation is a matter belonging to the respective 
States; and that whether a State will furnish edu­
cation at all, or in classrooms in which white and 
Negro students are mixed, or whether students will 
be separated, is to be determined by each State for 
the best interest of all its people. So long as each 
student is offered equal facilities and opportunities, 
none is denied the equal protection of the laws.

This Court’s decisions further have correctly 
recognized that, where the necessity exists, the teach­
ing of white and Negro students in separate class­
rooms is a reasonable exercise of the State’s police 
power to preserve the public peace, harmony, and 
general welfare. The people of Texas in their Con­
stitution, and the Legislature in statutes, have de­
clared that such a necessity exists in Texas.

Petitioner here seeks to have the Court overturn 
its decisions, not only as applied to the graduate 
schools of universities, but also as applied to all pub­
lic schools. If the theory of Petitioner and his am ici 
curiae were followed, the Court would overrule all 
of its historic decisions under which the States 
separate persons of the two races in public sanitar­
iums, schools for the deaf and blind, homes for the 
aged, and other institutions. He would have this 
Court annul by judicial decree the police power of 
the State to separate the races, even though equal 
facilities are offered both groups.

Petitioner and his am ici curiae assume that the 
great justices who wrote or adopted the previous 
opinions of this Court were unable correctly to under-



— 3—

stand and interpret the meaning of the Constitution. 
It is submitted that those justices not only compre­
hended the law but the thinking, feeling, and senti­
ments of the people. These decisions, correct in their 
holdings, have become ingrained into the society of 
a very large segment of the people of the United 
States and thousands of institutions have been es­
tablished and maintained under their principles.

The determination of the desirability, expediency, 
or necessity of having separate or mixed schools in 
a particular community or State is a legislative mat­
ter. The arguments of Petitioner’s sociologists and 
educators are properly addressable to the Legislative 
branch or to the people of a State, such as Texas, 
where the matter is deemed of such importance as 
to be written into the State Constitution.

Respondents therefore contend that the Constitu­
tional questions in this case have been settled by well 
reasoned opinions of this Court which should be fol­
lowed. If the Court decides to look behind those de­
cisions, it will find that they correctly interpret the 
Fourteenth Amendment. And if the Court should 
determine to examine anew the question as to 
whether there is any reasonable basis for the classi­
fication of persons in the operation of public schools 
and colleges, it will find that the reasonableness of 
and the necessity for such constitutional or legisla­
tive action still exists today.

The above are believed to be the controlling, if not 
the only, issues before this Court for decision. As 
will be developed, Petitioner, who stated on the trial 
that he would attend no separate school however



■4

equal it might be, did not present to the appellate 
courts of Texas the question of the sufficiency of the 
evidence to support the trial court’s findings of fact 
that he was offered equal facilities. That finding 
of fact of the trial court as to the equality of the 
two separate law schools in question must therefore 
be considered as having been established, leaving 
only the law questions.

Even assuming the fact question to be before the 
Court, Respondents say that there is substantial evi­
dence to support the trial Court’s findings. More­
over, the supervening facts as to the Negro law 
school, occurring since the trial of this case, have so 
altered the situation that the Court may well con­
sider that portion of the case moot.

Statement of the Case

The Courts of Texas, based on a long line of deci­
sions by this Court, have held that the State may pro­
vide education for its white and Negro students at 
different institutions where it is shown that the 
facilities offered both groups are equal.

The admission of Petitioner, a Negro, to the Law 
School of The University of Texas was denied be­
cause of the sections of the Texas Constitution re­
quiring separate equal schools.1 His mandamus was 
denied by the trial court because of the above hold-

1 Sections 7 and 14 of Article VII and related statutory 
provisions set out in Appendix to Respondents’ original 
brief at page 109. To distinguish it from this brief, the brief 
fiiled by Respondents in opposition to the granting of the 
petition for certiorari will be referred to as “Respondents’ 
Original Brief.”



— 5-

ings of this Court and because it found as a fact that 
the separate law school for Negroes offered Peti­
tioner “privileges, advantages, and opportunities for 
the study of law substantially equivalent to those of­
fered by the State to white students at The Univer­
sity of Texas.” (R. 440.)

The Texas Legislature in 1947 provided for the 
establishment of The Texas State University for 
Negroes to be located at Houston, and for the im­
mediate establishment of one of its branches, the 
School of Law, to be located at Austin until the uni­
versity at Houston was ready to assume the re­
sponsibility. The statute reads:

“It is the purpose of this Act to establish an 
entirely separate and equivalent university of 
the first class for Negroes with full rights to the 
use of tax money and the general revenue fund 
for establishment, maintenance, erection of 
buildings, and operation . . .”2

With an initial Legislative appropriation of over 
three million dollars,3 a grant of 53 acres of land be­
tween Rice Institute and the University of Houston, 
and a grant of other assets of the Houston College 
for Negroes valued in excess of a million dollars, 
that University was established at Houston.4

2 S. B. 140, 50th Leg. 1947. Set out at page 110 of Ap­
pendix, Respondents’ Original Brief.

s Ibid, Point II.
4 Report of State Auditor to Governor, Aug. 31, 1948, on 

Texas State University for Negroes. Appendix to Re­
spondents’ Original Brief, page 99. This transfer was made 
pursuant to H. B. 780, 50th Leg., 1947, being Art. 2643 (c) 
Tex. Civ. Stat. (Vernon 1948). It is discussed in the 
Record. (R. 54.)



— 6—

The Act also provided:

“• . . the Board of Regents of The University 
of Texas is authorized and required  to forth w ith  
organize and establish a separate School of Law 
at Austin for Negroes, to be known as the 
‘School of Law of The Texas State University 
for Negroes’ and therein provide instruction in 
law equivalent to the same instruction being of­
fered in law at The University of Texas. . . .”5

With an additional appropriation of $100,000.00 
that Law School was established (R. 36, 43, 86).6

Petitioner stated on the trial that even if the 
Negro law school was the absolute equivalent of the 
Law School of The University of Texas, he would 
not attend it. (R. 188.) The trial court’s judg­
ment recites that:

“From his own testimony, Relator would not 
register in a separate law school no matter how 
equal it might be and not even if the separate 
school affords him idential advantages . . .”7

On March 3, 1947, the Registrar wrote Petitioner 
that the School of Law would be open March 10, 
1947, and that his application theretofore made (to 
The University of Texas) and his qualifications 
would entitle him to enter.8

5 Italics are added throughout this brief unless otherwise 
indicated.

6 Before the school was established, Petitioner testified 
by deposition that he would attend a separate equal law 
school. (R. 179.) On the trial, he stated that he had chang­
ed his mind. (R. 182.)

7 R. 440.
8 R. 159, 372; Respondents’ Exhibit 13.



— 7—

The letter informed Petitioner that his instruc­
tors would be the sam e professors  who were and are 
teaching at the School of Law of The University of 
Texas; that the courses, texts, collateral readings, 
standards of instruction, and standards of scholar­
ship would be identical with those prevailing at the 
School of Law of The University of Texas; that a 
library was being installed, and that full use of the 
library of the Supreme Court of Texas was available 
prior to the delivery of a complete new library then 
on order; and that the new library would include all 
books required to meet the standards of the Amer­
ican Association of Law Schools and the American 
Bar Association.9

Although Petitioner received the letter, he did not 
answer it. Without coming to Austin to talk to the 
Dean, the Registrar, or any of his prospective pro­
fessors (R. 186), and without making any personal 
investigation of the school, the courses, faculty, or 
physical plant, he decided not to attend.10 The school 
was nevertheless ready to receive and instruct him.11

After hearing the evidence, the trial court found 
in its judgment:

“. . . this Court finds . . . that . . . the 
Respondents herein, . . . have established the 
School of Law of the Texas State University for 
Negroes in Austin, Texas, with substantially 
equal facilities and with the same entrance, 
classroom study, and graduation requirements, 
and the same courses and the same instructors

9 R. 372-374.
10 R. 174, 175, 177, 186.
11R. 86.



■8—

as the School of Law of The University of Tex­
as ; that such new law school offered to Relator 
privileges, advantages, and opportunities for the 
study of law substantially equivalent to those 
offered by the State to white students at The 
University of Texas; that Realtor, although 
duly notified that he was eligible and would be 
admitted to said law school March 10, 1947, de­
clined to register . . .”12

Petitioner appealed to the Texas Court of Civil 
Appeals but Petitioner did not invoke the jurisdic­
tion of that Court as to the want or sufficiency of the 
evidence to support the findings of fact as to the 
equality of the separate schools.13 That Court found 
in its opinion that “ O ur jurisd iction  in  this la tter re ­
gard  w as not invoked in  this case. . . . However 
. . . were our jurisdiction in that regard properly 
invoked, we would be constrained to hold that its 
preponderance and overwhelming weight supports 
the trial court’s judgment.”14 Nor was the jurisdic­
tion of the Texas Supreme Court invoked to consider 
whether there was evidence to support the findings 
of fact and the judgment. In the absence of such 
point of error that Court had no jurisdiction to pass 
on the matter.15

So the fact issue of whether Petitioner was offered 
equal facilities, not having been presented to the ap-

12 R. 440.
13 This is developed in Respondents’ Point IV.
14 R. 461. The opinion of the Texas Court of Civil Appeals 

is reported in 210 S. W. (2d) 442 (1948).
15 The Texas Supreme Court refused Petitioners’ ap­

plication for a writ of error. Except on very rare occasions, 
that Court does not write an opinion on refusing a writ of 
error. None was written in this case.



— 9—

pellate courts of Texas, is not properly before this 
Court.

But assuming the issue to be properly before this 
Court, there is ample evidence to support the trial 
court’s findings of fact and judgment.

As will be shown in the Addendum to this brief, the 
Negro Law School, after the trial of this case, was 
moved to Houston to become a permanent part of 
Texas State University, as contemplated in the 
statute. With its fine library of over 24,000 volumes 
and its up-to-date facilities in the new buildings in 
which it is housed, it has been found to meet the 
standards of the American Bar Association and the 
American Association of Law Schools. It has been 
granted provisional approval by the American Bar 
Association. Its accreditation by the American As­
sociation of Law Schools is contingent upon the out­
come of this suit.

The law question remaining, therefore, is whether 
the State, which is not obligated by the Federal Con­
stitution to furnish education to anyone, may pro­
vide education for its white and Negro students in 
separate schools providing equal facilities for both.

First Point

Section 7 of Artice VII of the Texas Constitution 
and related statutes providing that the State shall 
furnish equal education to its Negro and white stu­
dents in separate schools are constitutional. The 
power of the States to so classify and the reason­
ableness of this classification have been settled as 
a matter of law by this Court as not violative of



the equal protection clause of the Fourteenth Amend­
ment.

Argument and Authorities

The decisions of this Court are uniform in their 
holding that states may, by Constitution or statute, 
provide separate establishments for the education 
of their Negro and white students, provided equal 
facilities and opportunities are made available to 
each group. Related to the education cases are 
transportation cases. They are cited for their hold­
ings on the “equal protection clause.”

United States Supreme Court Decisions
Petitioner and his supporting am ici curiae would 

make it appear that P lessy  v. F ergu son  is the only 
decision of this Court in which the validity of the 
separation of the races, and the reasonableness of 
the classification as to race when equal facilities are 
furnished, has been considered. An examination 
of the cases will show that both of these related 
questions have been many times examined and re­
examined. The fact that the principles were and 
are so well established that the Court believed it 
unnecessary to write extensively on them in each 
case is certainly not to be taken to mean that this 
Court did not carefully weight and consider its de­
cision in each case.

The principal decisions of this Court on this point 
are presented in chronological order.

1. H all v. D eC uir, 95 U. S. 485 (1877). A Louis- 
ana statute provided for enforced commingling of

— 10—



— li­

the races in common carriers. A steamboat master 
operating in interstate commerce, separated Negro 
and white passengers and was sued for damages for 
having denied a Negro woman the right to remain 
in cabins reserved for whites. A judgment against 
him resulted. In reversing the judgment, this Court 
held that the Louisiana statute was an interference 
with interstate commerce and that Congressional in­
action left the ship’s master free to adopt such 
reasonable rules as seemed best for all concerned. 
Said the Court:

“ . . . we think this [Louisana] statute, to the 
extent that it requires those engaged in the 
transportation of passengers among the states 
to carry colored passengers in Louisana in the 
same cabin with whites, is unconstitutional. 
. . .” 95 U. S. 490.

Mr. Justice Clifford concurring, went into the 
matter more fully, including the reasonableness of 
the classification:

. . Substantial equality of right is the law 
of the State and of the United States; but equal­
ity does not mean identity, as in the nature of 
things identity in the accommodation afforded 
to passengers, whether colored or white, is im­
possible. . . . ” 95 U. S. at 503.

Reviewing the authorities, he wrote:

“Questions of a kindred character have arisen 
in several of the States, which support these 
views in a course of reasoning entirely satisfac­
tory and conclusive..................equality of rights



- 1 2 -

does not involve the necessity of educating white 
and colored persons in the same school any 
more than it does that of educating children of 
both sexes in the same school, or that different 
grades of scholars must be kept in the same 
school; and that any classification which p re­
serves substantially equal school advantages is 
not prohibited  by eith er the S tate or F ederal 
Constitution, nor would it contravene the provi­
sions of either. . . .

“Separate primary schools for colored and 
for white children were maintained in the city 
of Boston. . . . Distinguished counsel insisted 
that the separation tended to deepen and per­
petuate the odious distinction of caste; but the 
court responded, that they were not able to say 
that the decision was not founded on just 
grounds of reason and experience, and in the 
results of a discriminating and honest judg­
ment. . . .

“Age and sex have always been marks of 
classification in public schools throughout the 
history of our country, and the Supreme Court 
of Nevada well held that the trustees of the 
public schools in that State might send colored 
children to one school and white children to an­
other. . . .”

“. . . and it is settled law there that the 
(school) board may assign a particular school 
for colored children, and exclude them from 
schools assigned for white children, and that 
such a regulation is not in violation of the Four­
teenth Amendment.” 95 U. S. at 506.

2. P lessy  v. F ergu son , 163 U.S. 537 (1896). A 
later Louisiana statute required that colored and 
white passengers be furnished separate accommoda­
tions on carriers. Plessy, a Negro, was convicted for



- 1 3 -

refusing to occupy the section set aside for his race. 
The railroad did not operate in interstate commerce. 
It was squarely contended by Plessy that the state 
law, as applied to him, violated the equal protec­
tion clause.16 In overruling the contention, this 
Court said:

“The object of the (14th) Amendment was un­
doubtedly to enforce the absolute equality of the 
two races before the law, but in the nature of 
things it could not have been intended to abolish 
distinctions based upon color, or to enforce so­
cial, as distinguished from political equality, or 
a commingling of the two races upon terms un­
satisfactory to either. Laws permitting, and 
even requiring, their separation in places where 
they are liable to be brought into contact do not 
necessarily imply the inferiority of either race 
to the other, and have been generally, if not 
universally, recognized as within the compe­
tency of the state legislatures in the exercise of 
their police power. The m ost com m on instance 
o f this is connected w ith  the establishm ent o f  
separate schools fo r  w hite and colored children, 
which has been held to be a valid exercise o f  the

16 Among the questions presented in the brief for plaintiff 
in error (Plessy) was: “Has the State the power under the 
provisions of the Constitution of the United States to make 
a distinction based on color in the enjoyment of chartered 
privileges within the State?” (Page 5, his Brief.) The 
Court also had before it Railway v. Brown, 17 Wall 445 
(1873). Based on a provision of a private charter granted 
by Congress in 1863 applicable only to one particular line 
in the District of Columbia, it was held that Negroes could 
not be excluded from its cars. Petitioner does not rely on 
the case, but it is cited in some of his amici briefs. The 
Court in the Plessy case considered the Brow n  case and 
expressly distinguished it as dealing with “laws of a par­
ticular locality.” 163 U. S. at 545.



— 14—

legislative 'power even  by courts o f  S tates w here  
the political righ ts o f  the colored race have been  
longest and m ost earnestly  enforced . . . .

“The distinction between laws interfering 
with the political equality  of the Negro and 
those requiring the separation  o f  the tw o races  
in  schools, . . . and railway carriages has been  
freq u en tly  draw n by this court. . . .

“ So fa r , then, as a con fict w ith  the F ou r­
teen th  A m endm ent is concerned, the case r e ­
duces itse lf to the question w h ether the sta tu te  
o f Louisiana is a reasonable regulation , and 
with respect to this there must necessarily be a 
large discretion on the part of the Legislature. 
In  determ ining the question o f  reasonableness 
it is at liberty to act with reference to the es­
tablished usages, customs and traditions of the 
people, and with a view to the promotion of their 
comfort, and the preservation of the public 
peace and good order. Gauged by this standard, 
we cannot say that a law which authorizes or 
even requires the separation of the two races in 
public conveyances is unreasonable, or more 
obnoxious to the Fourteenth Amendment than 
the acts of Congress requiring separate schools 
for colored children in the District of Columbia, 
the constitutionality of which does not seem to 
have been questioned, or the corresponding acts 
of state legislatures. . . .

“. .  . When the government, therefore, has se­
cured to each of its citizens equal rights before 
the law and equal opportunities for improve­
ment and progress, it has accomplished the end 
for which it was organized and performed all 
of the functions respecting social advantages 
with which it is endowed.”



- 1 5 -

Petitioner cites Mr. Justice Harlan’s vigorous dis­
sent in this case as an indication that he would have 
thought also that separate schools were violative of 
the Fourteenth Amendment. It is significant that 
in his long list of “inequalities” which he said the 
majority opinion would permit, Mr. Justice Harlan 
did not mention separation in public education. In 
view of the obvious omission of the school question 
from his dissent and his subsequent words in Cum- 
ming v. B oard o f E ducation  and B erea  College v. 
K entucky, in fra , it is difficult to understand how 
anyone could conclude that Mr. Justice Harlan be­
lieved separate but equal school systems to be uncon­
stitutional.

3. Cam m ing v. B oard o f  Education, 175 U.S. 
528 (1899). An action was brought to restrain the 
Board from maintaining a high school for white chil­
dren without maintaining one for Negro children. 
The Constitution of Georgia which stated that 
“separate schools shall be provided for the white and 
colored races” was before this Court and quoted in 
its opinion. The injunction was denied. It was held 
that the equitable relief sought was not a proper 
remedy. Mr. Justice Harlan, speaking for the Court, 
said:

“Under the circumstances disclosed, we can­
not say that this action of the State court was, 
within the meaning of the Fourteenth Amend­
ment, a denial by the State to the plaintiffs, 
and to those associated with them of the equal 
protection of the laws, or of any privilege be­
longing to them as citizens of the United States. 
We may add that while all admit that the



■ 16-

benefits and burdens of public taxation must 
be shared by citizens without discrimination 
against any class on account of their race, the 
education o f the people in  schools m aintained  
by sta te taxation  is a m a tter  belonging to the 
respective  States, and any interference on the 
part of Federal authority with the management 
of such schools cannot be justified except in the 
case of a clear and unmistakable disregard of 
rights secured by the supreme law of the land.”

This language of Mr. Justice Harlan was quoted 
with approval by this Court in Gong Lum  v. R ice , 
275 U. S. 78 at 85, hereinafter discussed.

4. Chesapeake & Ohio R y. v. K en tu cky , 179 U.S. 
388 (1900). A  Kentucky statute required railways 
to furnish separate cars for white and Negro passen­
gers. Upon being convicted for violations of the 
act, the railway appealed. After determining that 
the Kentucky act applied only to its domestic and 
not interstate commerce, this Court concluded, under 
the D eC uir  and other cases, that “there can be no 
doubt as to its constitutionality.”

To emphasize that this Court did consider and pass 
upon the separation of the races under the equal pro­
tection clause, the following is quoted from Mr. Jus­
tice Brown’s opinion. It refers to the P lessy  case:

“On writ of error from this court, it was held 
that no question of interference with interstate 
commerce could possibly arise, . . . Indeed, the 
act was not claimed to be unconstitutional as an 
interference with interstate commerce, but its 
invalidity was urged  upon the ground  that it



— 17—

abridged the privileges or immunities of citi­
zens, deprived the petitioner of his property 
without due process of law, and also denied him  
the equal protection  o f the laws. H is contention  
w as overruled, and the sta tu te held to be no 
violation o f  the F ourteen th  A m endm ent.”  179 
U. S. at 393.

5. B erea  College v. K en tu cky, 211 U. S. 45 
(1908). A private college, a Kentucky corporation, 
was convicted of violation of a Kentucky statute 
which made it unlawful for a person or corporation 
to operate a school or college which received both 
white and Negro students. Wrote Mr. Justice 
Brewer:

“. . . the single question for our considera­
tion is whether it (the statute) conflicts with 
the Federal Constitution. . . . That the Legis­
lature of Kentucky desired to _ separate the 
teaching of white and colored children may be 
conceded. . . .” 211 U. S. at 53, 55.

The statute was upheld. Corporations being crea­
tures of the State, it could grant or withhold cor­
porate powers.

The holding was that the State could, within the 
Fourteenth Amendment, prohibit the teaching of 
white and Negro students together in the same priv­
ate school or college. It goes much further than 
the public schools.17 The breadth of the holding is

17 Mr. Justice Holmes, who is quoted at several places in 
Petitioner’s brief, was a member of the concurring ma­
jority in this case as well as the Chiles v. Chesapeake & 
Ohio, McCabe v. A . T. & S. F., and Gong Lum  v. Rice, cases 
hereinafter discussed.



■18—

emphasized in the dissent by Mr. Justice Harlan, 
who points out that the title of the act read :

“An Act to prohibit white and colored per­
sons from attending the same school.”

He further pointed out that the trial court over­
ruled the objection that the statute violated the 
Fourteenth Amendment, and that the highest court 
of Kentucky held that it was entirely competent for 
the State to adopt the policy of the separation of the 
races. He wrote:

“It is absolutely certain that the legislature 
had in mind to prohibit the teaching of the two 
races in the same private  institution, at the 
same time by whomever that institution was 
conducted.” 211 U.S. at 62.

Mr. Justice Harlan made it clear that his dissent 
was leveled only at the requirement for separation 
of the races at private institutions. As to the public 
schools, Mr. Justice Harlan said:

“ O f course w hat I  have said has no re feren ce  
to regulations prescribed  fo r  public schools, es­
tablished at the pleasure o f  the State and main­
tained at the public expense.”  211 U.S. at 69.

6. Chiles v. Chesapeake & Ohio R y ., 28 U.S. 71 
(1910). Chiles, a Negro traveling in interstate com­
merce, was required to move to a section set apart 
for Negroes. The Kentucky courts held that their 
statute requiring separation of the races was not 
applicable to interstate passengers. It denied relief 
on the basis of the regulations of the railway com-



— 19—

pany requiring separation. The only questions be­
fore this Court concerned the validity and reason­
ableness of those regulations.

This Court first considered the commerce clause. 
Hall v. D eC uir  was followed in its holding that in 
the absence of Congressional regulation of interstate 
commerce, carriers may make reasonable regulations 
for the safety and comfort of their passengers.

Regarding the reasonableness of the regulation, 
this Court turned to P lessy  v. F ergu son :

“The statute was attacked on the ground 
that it violated the Thirteenth and Fourteenth 
Amendments of the Constitution of the United 
States. The opinion of the court . . . reviewed 
prior cases, and not only sustained the law but 
justified  as reasonable the distinction betw een  
the races on account o f which the sta tu te was 
passed and enforced . It is true the power of a 
legislature to recognize a racial distinction was 
the subject considered, but if the test of reason­
ableness in legislation be, as it was declared to 
be, The established usages, customs and tradi­
tions of the people’ and the ‘promotion of their 
comfort and the preservation of the public peace 
and good order,’ this must also be the test of the 
reasonableness of the regulations of a carrier, 
made for like purpose and to secure like results. 
R egulations which are induced by the general 
sentim ent o f  the com m unity fo r  whom  they are 
made and upon whom  they operate, cannot be 
said to be unreasonable. See also Chesapeake & 
Ohio R y. Com pany v. K en tucky, 179 U.S. 388.”

The following paragraph clearly indicates that this 
Court did reconsider the constitutionality of separate



- 2 0 -

equal facilities and the classification of persons as to 
race. It also indicates that the Court, after consid­
eration, was satisfied with the opinion of Mr. Justice 
Clifford in the D eC uir  case and its decision In the 
P lessy  case, and that further writing on the subject 
was simply unnecessary. The opinion reads:

“The extent of the difference based upon the 
distinction between the white and colored races 
which may be observed in legislation or in the 
regulations of carriers has been discussed so 
m uch that w e are relieved  from  fu rth er  en large­
m ent upon it. We may refer to Mr. Justice Clif­
ford’s concurring opinion in H all v. D eC uir  for 
a review of the cases. They are also cited in 
P lessy  v. F ergu son  at page 550. We think the 
judgment should be affirmed.”

7. M cCabe v. A . T .&  S. F . R y. C o., 235 U.S. 151 
(1914). Action by Negro citizens to enjoin enforce­
ment of an Oklahoma statute requiring separation 
of white and colored citizens on trains and in wait­
ing rooms because (1) such statute violated the 
Fourteenth Amendment, and (2) the statute consti­
tuted a burden on interstate commerce.

With reference to the Fourteenth Amendment, 
this Court, speaking through Mr. Justice Hughes, ex­
pressly approved the holding of the Circuit Court:

“That it had been decided by this court, so 
that the question could no longer be considered 
an open one, that it was not an infraction of 
the 14th Amendment for a State to require sep­
arate, but equal, accommodations for the two 
races.”



— 21—

8. Gong Lum  v. R ice, 275 U. S. 78 (1927) is a case 
directly in point. The Constitution of Mississippi, 
the pertinent portion of which is set out in this 
Court’s opinion, read:

“Separate schools shall be maintained for 
children of the white and colored races.”

A Chinese girl, classified as “colored” under Mis­
sissippi law, was denied admission to the white 
school. A direct attack was made on the constitu­
tionality of the separation of the races for schooling 
purposes, the contention being made that such was a 
violation of the equal protection clause of the Four­
teenth Amendment. The first assignment of error 
in this Court was:

“A child of school age and otherwise qualified 
. . .  is denied the equal protection of the laws 
when she is excluded from such school solely on 
the ground that she is a Chinese child and not 
of the Caucasian race.” (Brief and Argument 
for Plaintiff in Error, p. 5 .)18

Mr. Chief Justice Taft, speaking for a unanimous 
Court composed of himself and Justices Holmes, 
Van Devanter, Brandeis, Stone, McReynolds, Suther­
land, Butler, and Sanford, clearly stated the ques­
tion before the Court:

18 This point is stressed in these cases because of the asser­
tion by Petitioner and his supporting amici curiae that this 
Court his never considered and passed on the question, or 
that if it did consider it in the Plessy case, it has not recon­
sidered it since then. The assertion is, of course, unfounded 
and reflects upon the opinions of this Court which plainly 
recite or clearly show that the matter was before the Court 
and decided upon.



— 22—

“The case then reduces itself to the question 
whether a state can be said to afford to a child 
of Chinese ancestry born in this country, and 
a citizen of the United States, equal protection 
of the laws by giving her the opportunity for a 
common school education in a school which re­
ceives only colored children of the brown, yellow 
or black races.”

Showing that the Court was especially concerned 
with the constitutionality of separate schools under 
the equal protection clause, he stated more specifi­
cally :

“The question here is whether a Chinese cit­
izen of the United States is denied equal 'protec­
tion of the laws when he is classed among the 
colored races and furnished facilities for educa­
tion equal to that offered to all, whether white, 
brown, yellow, or black.” Id. at page 85.

Again having considered the matter (and having 
reconsidered the principles of the Plessy case) the 
Court found the previous decisions of Cumming v. 
Board of Education and the Plessy case sound. The 
opinion used Mr. Justice Harlan’s words from the 
Cumming opinion:

“We cannot say that this action . . . was, 
within the meaning of the Fourteenth Amend­
ment, a denial . . .  of the equal protection of 
the laws. . . .  We may add that, while all 
admit that the benefits and burdens of public 
taxation must be shared . . . without discrim­
ination against any class on account of their 
rape, the education of the people in schools main­
tained by state taxation is a matter belonging to 
the respective states . . .”



-23—

The opinion continued,

“In Plessy v. Ferguson . . .  in upholding 
the validity under the Fourteenth Amendment 
of a statute of Louisiana requiring the separa­
tion of the white and colored in railway coaches, 
a more difficult question than this, this Court, 
speaking of permitting race separation, said,

“ £The most common instance of this is con­
nected with the establishment of separate 
schools for white and colored children, which 
has been held to be a valid exercise of the legis­
lative power even by courts of States where the 
political rights of the colored race have been 
longest and most earnestly enforced.’ ”

Finding it unnecessary to write further, the Chief 
Justice said for the Court,

“ . . . we think that it is the same question 
which has been many times decided to be within 
the constitutional power of the state legislature 
to settle without intervention of the federal 
courts under the Federal Constitution.”

The Court concluded:

“The right and power of the state to regulate 
the method of providing for the education of 
its youth at public expense is clear. . . .”

“ The decision is within the discretion of the 
State in regulating its public schools and does 
not conflict with the Fourteenth Amendment. 
The judgment of the Supreme Court of Missis­
sippi is affirmed.”

9. Missouri ex rel, Gaines v. Canada, 305 U.S. 
337 (1938). Gaines, a Negro, was refused admis-



-24

sion to the School of Law of the University of Mis­
souri. The question before this Court was stated at 
the beginning of the opinion:

“Asserting that this refusal constituted a 
denial by the State of the equal protection of 
the laws in violation of the Fourteenth Amend­
ment . . . petitioner brought this action for 
mandamus to compel . . . the University to 
admit him.”

The first point raised in this Court in the Petition 
for Certiorari (p. 17) was:

“The State of Missouri denied petitioner the 
equal protection of the laws in excluding him 
from the School of Law of the University of 
Missouri solely because he is a Negro.”

Upon a finding that there was no school of law for 
Negroes, and that there was no mandatory duty upon 
any official to establish such a school, this Court held 
that “ in the absence of other and 'proper provisions 
for his legal training within the State,”  Gaines would 
be entitled to enter the University of Missouri Law 
School.

Mr. Chief Justice Hughes, speaking for the ma­
jority composed of himself, two members of the pres­
ent Court, Mr. Justice Black and Mr. Justice Reed, 
and Justices Brandeis, Stone, and Roberts, again an­
nounced the considered opinion of this Court on the 
principles applicable here:

“In ̂  answering petitioner’s contention that 
this discrimination constituted a denial of his 
constitutional right, the state court has fully



■25-

recognized the obligation of the State to provide 
negroes with advantages for higher education 
substantially equal to the advantages afforded 
for white students. The State has sought to ful­
fill that obligation by furnishing equal facilities 
in separate schools, a method the validity of 
which has been sustained by our decisions.”  
(citing with approval the Plessy, McCabe, and 
Gong Lum decisions.)

“ . . . 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 sep­
arated groups within the State.”

“Here, petitioner’s right was a personal one. 
It was as an individual that he was entitled to 
the equal protection of the laws, and the State 
was bound to furnish him within its borders fa­
cilities for legal education substantially equal 
to those which the State there afforded for per­
sons of the white race. . . .”

“We are of the opinion . . . that petitioner 
was entitled to be admitted to the law school of 
the State University in the absence of other and 
proper provision for his legal training within 
the State.” 13

The dissent in the case by Justices Butler and 
McReynolds was not from the announced principles 
of the validity of separate schools where there are

19 The cause was remanded to the Missouri Supreme 
Court. Its subsequent decision, 344 Mo. 1238, 131 S. W. 
(2d) 217 (1939), recognizes that the Legislature had enact- 
a statute making it mandatory that equal educational oppor­
tunities be afforded colored students. It remanded the cause 
to the trial court for a finding on such equality by the open­
ing of the next school year. No further proceedings oc­
curred.



- 2 6 -

separate equal facilities within the State, but was on 
the proposition that Missouri already had complied 
with the Constitution by making a legal education 
available to petitioner in out-of-State schools.

The recent case of Sipuel v. Board of Regents, 332 
U.S. 631 (1948), was a mandamus proceeding by a 
Negro to compel her admission to the University of 
Oklahoma law school.20 The relief was denied by the 
State court principally on the ground that Sipuel 
had not made proper demand for the establishment 
of a separate law school. The brief Per Curiam hold­
ing of this Court was:

“The petitioner is entitled to secure legal edu­
cation afforded by a state institution. To this 
time, it has been denied her although during 
the same period many white applicants have 
been afforded legal education by the State. The 
State must provide it for her in conformity with 
the equal protection clause of the Fourteenth 
Amendment and provide it as soon as it does 
for applicants of any other group. Missouri 
ex rel. Gaines v. Canada. . .

In Fisher v. Hurst, 333 U.S. 147 (1948) the same 
petitioner, nee Sipuel, brought an original action in 
this Court to compel compliance with this Court’s 
mandate in the Sipuel case. Following the Sipuel

20 The petition for certiorari did not present the issue of 
“whether a State might not satisfy the equal protection 
clause . . .  by establishing a separate law school for Ne­
groes” (F isher v. H urst, 333 U.S. 147, 150). Neverthe­
less, the Court’s disposition of the case is significant in that 
it approved the same procedure as previous decisions in 
which the point was specifically raised and decided upon.



- 2 7 -

decision, the Oklahoma Supreme Court directed the 
Board of Regents of Oklahoma University:

. . to afford to plaintiff, and all others 
similarly situated, an opportunity to commence 
the study of law at a state institution as soon 
as citizens of other groups . . .  in conformity 
with the equal protection clause . . . and with 
the provisions of the Constitution and statutes 
of this State requiring segregation. . . .”

Pursuant thereto, the trial court ordered that un­
less the separate law school was established and 
ready to function at the designated time applicable 
to any other group, the Board of Regents must:

“ (1) enroll plaintiff . . .  in the first-year 
class of the School of Law of the University of 
Oklahoma, in which school she will be entitled 
to remain . . . until such a separate law school 
for negroes is established. . . .

“ (2) not enroll any applicant of any group 
. . .  until said separate school is established.. . .

“It is further ordered . . . that if such a 
separate law school is so established . . . the 
defendants . . . are hereby ordered . . .  to 
not enroll plaintiff in the first-year class of the 
School of Law of the University of Oklahoma. 
. . .” 333 U.S. at 149.

In the original proceeding the question before this 
Court was whether its mandate in the Sipuel case 
had been followed. This Court concluded that:

“It is clear that the District Court . . . did 
not depart from  our m a n d a te”



— 2 8 —

This Court explained the Sipuel case:

“The Oklahoma Supreme Court upheld the 
refusal to admit petitioner on the ground that 
she failed to demand establishment of a sep­
arate school. . . .  On remand, the District 
Court correctly understood our decision to hold 
that the equal protection clause permits no such 
defense.”

The Sipuel case, citing the Gaines case with ap­
proval, therefore took cognizance of the long estab­
lished principle that separate schools may be pro­
vided so long as the facilities are equivalent.21 It 
made clear that the opportunities must be provided 
for the Negro students as soon as they are made 
available to white students. In this case, the School 
of Law of the Texas State University was available 
to Petitioner at the time of this trial and is still 
available to him.

Other Federal and State Court Cases

In Carr v. Corning (C.C.A., D.C., decided Feb­
ruary 15, 1950, unreported as yet), a mandatory 
injunction was sought to compel the admission of

21 Even Justice Rutledge in his dissent recognized that 
the separate but equal doctrine had been applied, although 
he disagreed with the manner of its application by the State 
Court. In explaining his interpretation of this Court’s 
mandate in the Sipuel case he said:

“It also meant that this should be done if not by ex­
cluding all students, then by affording petitioner the 
advantages of a legal education equal to those afforded 
to white students. And in my comprehension the 
equality required was equality in fact, not in legal 
fiction.”



— 2 9 -

Negro students into the schools designated for white 
students in the District of Columbia. It was urged, 
as stated by the Court, that “the separation of the 
races is itself, apart from the equality or inequality 
of treatment, forbidden by the Constitution.” “The 
question thus posed,” continued the Court, “is 
whether the Constitution lifted this problem out of 
the hands of all the legislatures and settled it. We 
do not think it did.” That Court, after reviewing 
the history of the Amendment and the Civil Rights 
Acts, said that the contemporaneous legislation by 
the Congress as to separate schools “conclusively 
supports our view of the amendment and its effects.” 
It continued,

“The Supreme Court has consistently held 
that if there be an ‘equality of the privileges 
which the laws give to the separated groups’ the 
races may be separated. That is to say that 
constitutional invalidity does not arise from the 
mere fact of separation but may arise from an 
inequality of treatment. Other courts have long 
held to the same effect.”

The Court, one judge dissenting, thereupon sus­
tained the validity of the separate schools in the Dis­
trict of Columbia.

Many of the strongest cases upholding the consti­
tutionality of separation of the races have come 
from the highest courts of states outside the South. 
These cases, together with the many cases decided 
in the Southern States are set out in the Appendix 
beginning on page 211. They form a great body of 
the law on which thousands of schools and the struc-



— 30—

ture of other important State functions of many 
States have been built. They are an important body 
of cases. They are placed in the Appendix in the 
interest of brevity. Two of the cases decided out of 
the South are here set out as illustrative.

In People v. School Board of Queens, 161 N. Y. 
598, 56 N. E. 81 (1900), the only question was 
“whether the borough of Queens is authorized to 
maintain separate schools for the education of col­
ored children.” In upholding such action, the high­
est New York Court declared:

“The most that the constitution requires the 
legislature to do is to furnish a system of com­
mon schools where each and every child may 
be educated,— not that all must be educated in 
any one school, but that it shall provide or fur­
nish a school or schools where each and all may 
have the advantages guaranteed by that instru­
ment. If the legislature determined that it was 
wise for one class of pupils to be educated by 
themselves, there is nothing in the constitution 
to deprive it of the right to so provide. It was 
the_ facilities for and the advantages of an edu­
cation that it was required to furnish to all the 
children, and not that it should provide for them 
any particular class of associates while such ed­
ucation was being obtained. . . .”22

In State ex rel. Weaver v. Board of Trustees of 
Ohio State U., 126 Ohio St. 290, 185 N. E. 196

22 New York enacted a statute in 1900 which prohibits 
separation of the races in schools. 2 N. Y. Laws 1900, ch. 
492, p. 1173. The enactment of such statute is fully within 
the power of the State, just as laws requiring separation. 
This statute does not change the holding of the Courts where 
the statutes permit or require separation.



— 31—

(1933) Ohio State University had offered a home 
economics course in which female students operated 
a residence wherein they lived. The course included 
cooking, buying, etc. A Negro’s application for this 
course was refused, and an equivalent course was of­
fered. She sued to compel her admission. The Ohio 
Supreme Court wrote in denying the mandamus:

_ “ ‘Any classification which preserves substan­
tially equal school advantages is not prohibited 
by either the state or federal constitution, nor 
would it contravene the provisions of either.’ . . .  
the respondents had full authority to prescribe 
regulations that will prove most beneficial to the 
university and state and will best conserve, pro­
mote, and secure the educational advantages of 
all races. The purely social relations of our cit­
izens cannot be enforced by law; nor were they 
intended to be regulated by our own laws or by 
the state and Federal Constitutions. . . . 
‘When the government, therefore, has secured 
to each of its citizens equal rights before the 
law, and equal opportunities for improvement 
and progress, it has accomplished the end for 
which it was organized, and performed all of 
the_ functions respecting social advantages with 
which it is endowed.’ ”

PETITIONER’S CASES DISTINGUISHED

None of the cases cited by Petitioner holds that a 
State may not constitutionally provide education for 
its white and Negro students at separate schools 
where equal education is furnished to both groups. 
The cases above cited, and those hereinafter men­
tioned, are uniformly to the contrary.



— 32—

The cases cited by Petitioner are principally those 
involving complete exclusion of Negroes or discrimi­
nation (as distinguished from' separation) against 
persons of the Negro or Oriental races in matters of 
civil and political rights, such as jury service, voting 
in primaries, acquiring and holding property, earn­
ing a living, obtaining confessions by duress, and the 
like. These cases are obviously distinguishable from 
situations where persons of the white and Negro 
races are offered, at the State’s expense, equivalent 
opportunities for obtaining an education.

Pearson v. Murray

Maryland having no separate law school, a man­
damus was granted admitting a Negro to the Univer­
sity of Maryland Law School. The opinion, however, 
recognized that where equal opportunities are offer­
ed, a State may offer education at separate institu­
tions :

“Equality of treatment does not require that 
privileges be provided members of the two races 
in the same place. The state may choose the 
method by which equality is maintained. Tn 
the circumstances that the races are separated 
in the public schools, there is certainly to be 
found no violation of the constitutional rights 
of the one race more than the other, and we see 
none of either, for each, though separated from 
the other, is to be educated upon equal terms 
with that other, and both at the common public 
expense.’ ” 169 Md. 478, 182 Atl. 590 (1936.)



— 33—

Civil and Political Rights Cases

There are several cases which hold that under 
the 14th Amendment state action that prevents Ne­
groes from serving on juries, or systematically ex­
cludes them, is unconstitutional.

Strauder v. W est V irginia, 100 U. S. 303, simply 
holds that where a Negro is convicted of murder 
upon an indictment by a grand jury upon which no 
Negro served or could serve, the conviction must be 
reversed. The case is one of complete exclusion and 
discrimination, and not one of separation with equi­
valent facilities.23

As will be seen in Part II of this Brief, Congress 
early interpreted the Fourteenth Amendment to in­
clude equal protection in jury service. In 1869, it re­
pealed its laws for the District of Columbia which 
had made Negroes ineligible for Jury service.24 And

23 One of this group of cases, Franklin v. South Carolina, 
was argued the same week (April 18), and handed down the 
same day (May 31, 1910) as Chiles v. Chesapeake & Ohio 
Ry. which upheld as reasonable a carrier’s regulation sepa­
rating the races, showing a clear distinction in the minds 
of the Court. 218 U. S. 71 and 161. Other cases involving 
jury service are Carter v. Texas', 177 U. S. 442 (1900) 
(grand jury) ; P ierre v. Louisiana, 306 U. S. 354 (1939) 
(grand jury) ; Smith v. Texas, 311 U. S. 128 (1940) (grand 
jury) ; Hill v. Texas, 316 U. S. 400 (1942) (grand jury) ; 
Patton v. Mississippi, 332 U. S. 463 (1947) (grand jury) ; 
Brunson v. N orth  Carolina, 333 U. S. 851 (1948) (grand 
jury). But cf. Akins v. Texas, 325 U. S. 398 (1945), and 
Moore v. N ew  York, 333 U. S. 565 (1948).

24 Act of March 18, 1869, 16 Stat. 3: “ . . . the word 
‘white’ wherever it occurs in the laws relating to the Dis­
trict of Columbia . . . and operates as a limitation on the 
right of any elector . . .  to hold any office or to be selected 
and serve as a juror . . .  is hereby repealed.”



-34-

Section 4 of the Civil Rights Act of 1875 provided 
that no citizen should be disqualified for jury service 
on account of race. 18 Stat. 335. On the other hand, 
as will be discussed on pages 46 to 64, Congress main­
tained separate schools in the District of Columbia 
before, during, and after the adoption of the 
Fourteenth Amendment and specifically remov­
ed the reference to schools from various proposals 
including the 1875 Civil Rights Act in order to leave 
that matter to the States.

The Strauder case was considered at length in the 
Plessy case. Mr. Justice Strong, who wrote the 
Strauder case, was among the majority in the 
Plessy case and therefore agreed with that opinion 
which expressly distinguished the Strauder case, 
saying:

“The distinction between laws interfering 
with the political equality of the Negro and 
those requiring the separation of the races in 
schools . . . and railroad carriages has been 
frequently drawn by this Court. Thus in 
Strauder v. West Virginia . . .” 163 U. S. at 
545.

The Strauder case was also unsuccessfully urged 
on the Court in the Gong Lum case, 275 U. S. at 79, 
The distinction between exclusion from jury service 
in a case involving one’s life, liberty, or property and 
cases involving the furnishing of equal education, at 
the expense of the State, to white and Negro students 
in different buildings, was clear to the Court.



35—

To the same effect are cases involving voting 
rights.25 The right to vote is a political right guar­
anteed by the Federal Constitution. These cases 
have nothing to do with offering of equal facilities 
in education.

There are several cases which have reversed crim­
inal convictions of Negroes where it was shown that 
the convictions were based on confessions which 
were obtained under duress.26 Obviously these duress 
cases apply to white as well Negro citizens. The 
obtaining of a confession by whipping and burning, 
whether applied to Negro or white, has nothing to 
do with the offering of equivalent facilities for ed­
ucation.

The Chinese and Japanese Exclusion Cases

A short summary of the facts of these cases will 
show their distinction.

Yick W o v. H opkins, 118 U. S. 356 (1886). A 
broad city ordinance gave a board unbridled power. 
The board arbitrarily refused to license 200 Chinese

25 Nixon v. Herndon, 273 U. S. 536 (1927) ; Nixon v. Con­
don, 286 U. S. 73 (1932) ; Lane v. Wilson, 307 U. S. 268 
(1939) ; TJ. S. v. Classic, 313 U. S. 299 (1941) ; Smith v. 
Allwright, 321 U. S. 649 (1944) overruling Grovey v. Town­
send, 295 U. S. 45; Chapman v. King (C.C.A. 5th, 1946), 
154 F. (2d) 460, cert. den. 327 U. S. 800; and Rice v. El­
more (C.C.A. 4th, 1947), 165 F. (2d) 387, cert. den. 333 U. 
S. 875 (1948).

26 Brown v. Mississippi, 297 U. S. 278 (1936) ; Chambers 
v. Florida, 309 U. S. 227 (1940) ; White v. Texas, 309 U. S. 
631, 310 U. S. 530 (1940) ; Ward v. Texas, 316 U. S. 547 
(1942) ; and Lee v. Mississippi, 332 U. S. 742 (1948). But 
cf. Lyons v. Oklahoma, 322 U. S. 596 (1944).



- 3 6 -

laundrymen and licensed 80 non-Chinese similarly 
situated. It was held that the equal protection 
clause applied to aliens, and that these Chinese were 
not afforded equal protection. They were not given 
equal opportunity but were completely deprived of 
the right to work and earn a living.

Truax v. Raich, 239 U. S. 33 (1915). An Arizona 
statute required employers to employ at least 80% 
qualified electors or citizens. Raich, an alien cook, 
was about to be fired simply because he was not a 
citizen. As in theYick Wo case, it was held that the 
statute did not give Raich equal protection of the 
laws. The Court said that the Legislature does not 
have the power “to deny to lawful inhabitants, be­
cause of their race or nationality, the ordinary 
means of earning a livelihood . . . the right to work 
. . .  is the very essence of personal freedom and op­
portunity that it was the purpose of the ll+th Amend­
ment to secure.”

Takashashi v. Fish and Game Comm., 334 U. S. 
410 (1948), falls under the above ruling. There 
the California statute kept an alien Japanese from 
fishing. It was the right to work which was pro­
tected.

Also among these “right to work” cases are Steele 
v. L. & N. Ry., 323 U. S. 192 (1944), and Tunstall 
v. Brotherhood, 323 U. S. 210 (1944). The Court 
held that where Congress made a union the exclusive 
bargaining agency for railroad employees, that 
union must represent the Negro as well as white 
workers and not deprive the Negroes of the opportu-



— 37—

nity to obtain the better jobs simply because of race, 
citing the Yick Wo case. The union must represent 
both groups equally. Underscoring the distinction 
in the types of cases, the Gaines case was cited with 
approval. 323 U. S. at 203.

These cases hold that a person may not be de­
prived of earning a living and kept from working 
at his trade simply because of race. They are clearly 
distinguishable. Texas is not denying education to 
any race. It is offering equal educational opportu­
nities to white and Negro students at separate in­
stitutions.

Hirabayashi v. U. S., 320 U. S. 81 (1943) and 
Koremtasu v. U. S., 323 U. S. 214 (1944), held that 
citizen Japanese could be made to respect curfew 
regulations and vacate war zones on the West Coast 
as a war measure. But in Ex Parte Endo, 323 U. S. 
283 (1944), where a U. S. citizen of Japanese ex­
traction, whose loyalty was not questioned, was 
moved out of her home and sent to a “relocation 
center,” and had been awarded a “leave” to go by the 
civilian authorities in charge— and was yet ar­
bitrarily detained, it was held that such citizen was 
entitled to habeas corpus to be released. The case on 
its facts is obviously distinguishable.

The Property Ownership Cases

The next group of cases held that the equal pro­
tection clause protects the rights to own and occupy 
land. It protects the person in that property right.

Thus in Oyama v. California, 332 U. S. 633 
(1948), it was held that land owned in the name of



■38—

a U. S. citizen of Japanese extraction could not be 
escheated simply because it had been purchased for 
him by an alien Japanese in an alleged violation of 
the Alien Land Law of California. The citizen of 
Japenese ancestry was saddled with more onerous 
burdens in his property ownership than other 
citizens.

Similarly in Shelley v. Kraemer, 334 U. S’. 1 
(1948), the Court held in voiding state enforcement 
of restrctive covenants on realty that the equal pro­
tection clause protected the Negro against state ac­
tion in his right to own and occupy property. The 
Court stated:

“We have noted that freedom from discrim­
ination by the States in the enjoyment of prop­
erty rights was among the basic objectives . . . 
of the Fourteenth Amendment” 334 U. S. at 20.

Referring to the Oyama case, the Court said:

“Only recently this Court had occasion to de­
clare that a state law which denied equal enjoy­
ment of property rights . . . was not a legiti­
mate exercise of the state’s police power. . . .”

The Court continued:

“. . . it would appear beyond question that 
the power of the State to create and enforce 
property' interests must be exercised within the 
boundaries defined by the Fourteenth Amend­
ment.” 334 U. S. at 22.

As will be discussed in Point II of this brief, the 
right to “purchase, lease, sell, hold, and convey real



— 39—

and personal property, and to full and equal benefit 
of all laws and proceedings for the securing . . .  of 
property” was enacted into the Civil Rights Act of 
1866. 14 Stat. 27. The first section of the Four­
teenth Amendment was generally understood to have 
embodied the 1866 Act. As stated by Flack, “. . . 
there seems to be little . . . difference between the 
interpretation put upon the first section by the ma­
jority and by the minorty, for nearly all said that it 
was but an incorporation of the Civil Rights Bill.” 
The A doption  o f the F ou rteen th  Am endm ent, p. 81.

On the other hand, the 1866 Act was amended to 
delete the general language which might have been 
construed to require mixed schools. Mr. Sumner’s 
Civil Rights Bill was amended and passed by the Se­
nate in 1872 after deleting reference to schools. The 
references to schools were deleted from the Civil 
Rights Act of 1875 to leave the matter to the States. 
The Congress, before, during, and after the adoption 
of the amendment operated separate schools in the 
District. All of this is discussed at length in Point 
II hereof.

Furthermore, this Court has heretofore dis­
tinguished between p rop erty  rights and privileges, 
and between rights of “citizens of the United States” 
and privileges of “citizens of a State.” Under the 
foregoing, the right of acquiring and holding realty 
is a p roperty  righ t of a citizen  o f the United States. 
But the receiving of an education, at the expense of 
the State, especially at the collegiate and profes­
sional level, is not a property right. H am ilton v. 
R egents o f  the U niversity  o f  California, 293 U. S. 
245 (1934); W augh v. M ississippi, 237 U. S. 589



— 40—

(1915). It is referred to in the Hamilton case as a 
privilege given by the State.27

The distinction between the denial of the right to 
own and occupy property and the furnishing of equal 
facilities was drawn by this Court in Buchanan v. 
Warley, 245 U. S. 60 (1917). There a white citizen 
contracted to sell residential property in a white 
area to a Negro. A city ordinance prohibited the 
sale. The Negro attempted to avoid the sale claim­
ing the validity of the ordinance. This Court held 
the ordinance void under the Fourteenth Amend­
ment. The Negro insisted that the Plessy case was 
controlling. The Court, distinguishing between right 
to own property and the furnishing of equal facil­
ities, said:

“It will be observed that in that (Plessy) 
case, there was no attempt to deprive persons of 
color of transportation . . . and the express re­
quirements were for equal though separate fa­
cilities. . . .  In Plessy v. Ferguson, classifi­
cation of accomodation was permitted upon 
the basis of equality for both races.” 245 U. S. 
at 79.

The Interstate Commerce Cases

Morgan v. Virginia, 328 U. S. 373 (1946) held 
that a state statute requiring separation in inter-

27 The 14th Amendment provides: “No state shall make 
or enforce any law which shall abridge the 'privileges or im­
munities of citizens of the United States . . The Court 
held that attending a state college is not a privilege of a 
citizen of the United States but is a privilege extended by 
one of the States of the United States, thus again distin­
guishing the two types of citizenship. Slaughter House 
Cases, 16 Wall. 36.



_ 4 1 .

state carriers was invalid as a burden on interstate 
commerce. The shifting of passengers upon cross­
ing state lines at night or in the daytime was an un­
due burden. The case is rooted in the D eC uir case. 
In the D eC uir  case, the statute required comming­
ling of the races. The M organ  case required sepa­
ration of the races. Both were struck down. This 
Court based its decision in the M organ  case squarely 
on the interstate commerce clause. The Fourteenth 
Amendment and the cases construing it were not 
mentioned.

Regarding the interstate commerce clause, Mr. 
Justice Burton dissented, saying in part:

“It is a fundamental concept of our Consti­
tution that where conditions are diverse the so­
lution of problems arising out of them may well 
come through the application of diversified 
treatment matching the diversified needs as de­
termined by our local governments. Uniformity 
of treatment is appropriate where a substantial 
uniformity of conditions exists.”

Bob-Lo E xcu rsion  Co. v. M ichigan, 333 U. S. 28 
(1948), was also decided wholly under the interstate 
commerce clause. A steamship operated to and from 
an island just off shore but across the Canadian line. 
It refused passage to a Negro. It was held that the 
application of the Michigan Civil Rights Act to the 
facts was not a burden on interstate commerce, it 
being a completely localized transaction.

The case is further distinguishable because, as 
pointed out by Mr. Justice Rutledge in the majority 
opinion and by Mr. Justice Douglas concurring, the



■ 4 2 -

carrier did not offer equal facilities; it completely 
excluded the Negro from passage on the ship. Mr. 
Justice Douglas continued, citing the Gaines case:

“Nothing short of at least ‘equality of legal 
right’ (Missouri ex rel. Gaines v. Canada . . .) 
in obtaining transportation can satisfy the 
Equal Protection Clause.” 333 U. S. at 42.

On the other hand, where no interstate commerce 
is involved, state statutes requiring separation with 
equal facilities have been held not to violate the equal 
protection clause. Plessy v. Ferguson, supra; Ches­
apeake & 0. Ry. v. Kentucky, supra. Where no state 
action is involved, similar regulations of private car­
riers have been upheld as reasonable. Chiles v. 
Chesapeake & 0. Ry., supra.

Argument

The foregoing cases argue themselves. They dem­
onstrate that this Court has uniformly held that the 
states may furnish education to their white and 
Negro citizens at separate institutions so long as sub­
stantially equal facilities are offered both groups. 
Petitioner has cited no case to the contrary.

As this Court said in the Gong Lum case:

“The right and power of the State to regulate 
the method of providing for the education of 
its youth at public expense is clear. . . . The 
decision (to separate the races) is within the

* discretion of the state in regulating its public 
schools and does not conflict with the Fourteenth 
Amendment.” 275 U. S. at 85 and 87.



- 4 3 -

In the Gaines case Mr. Justice Hughes speaking 
for the Court, recognized the long-established rule. 
He wrote: “The state has sought to fulfill that ob­
ligation by furnishing equal facilities in separate 
schools, a method the validity of which has been sus­
tained by our decisions.”

The Sipuel case, citing the Gaines case with ap­
proval took cognizance of the long established princi­
ples announced therein. And the opinion in Fisher 
v. Hurst, that the subsequent judgments of the Okla- 
home courts were not inconsistent with its Sipuel 
mandate, is in harmony with the holdings of the 
Gong Lum, Plessy, Gaines and other cases herein set 
out.

It is therefore respectfully submitted that Ar­
ticle VII, Section 7 of the Texas Constitution and 
related statutes providing that the State shall fur­
nish equal education to its Negro and white students 
in separate schools are Constitutional.

Second Point

The background and contemporaneous construc­
tion of the Fourteenth Amendment sustain this 
Court’s interpretation that under the Amendment 
the States may furnish equal education to their Ne­
gro and white students in separate schools.

Argument and Authorities

Under Point I the State has called attention to nine 
decisions of this Court, thirteen Federal Court deci-



4 4

sions and fiifty-eight State Court decisions which 
interpret the equal protection clause of the Four­
teenth Amendment as not prohibiting States from 
furnishing equal educational advantages to Negro 
and white students in separate schools.

Petitioner asks that this Court’s decisions be re­
examined and overruled. He charges that the dis­
tinguished members of this Court for the past sixty 
years have misinterpreted the Fourteenth Amend­
ment. He says that a restudy of its purposes, back­
ground and contemporaneous construction is jus­
tified in order to place a new and different interpre­
tation thereon in so far as it applies to this case.

We believe that the question has been well settled 
by this Court, and its decisions so long relied upon 
by the States and the Congress in the establishment 
and maintenance of public educational facilities, that 
re-examination of the cases is unjustified.

It should be enough that such distinguished jurists 
as Hughes and Holmes concluded

“That it had been decided by this court, so 
that the question could no longer be considered 
an open one, that it was not an infraction of the 
14th Amendment for a State to require sepa­
rate, but equal, accommodations for the two 
races.”28

or that such Justices as Taft, Holmes, Brandeis, and 
Stone concluded

“that it is the same question which has been 
many times decided to be within the constitu­
tional power of the state legislature to settle

28 McCabe v. A . T. & S. F . R y Co., 235 U.S. 151 (1914).



— 45—

without intervention of the federal courts under 
the Federal Constitution.”29

or that Justices Hughes, Brandeis, Stone, Black and 
Reed found the separate equal educational system to 
be one

“the validity of which has been sustained by 
our decisions.”30

However, Respondents have nothing to fear if this 
Court desires to re-examine its previous interpreta­
tions of the Fourteenth Amendment in the light of 
the background, purpose, and common understand­
ing at the time of its adoption.

In fact, such an examination will but serve to 
answer conclusively Petitioner’s attempt to impeach 
this Court’s former decisions as unwarranted and 
unsound. It will reveal that this Court’s predeces­
sors were better grounded in the purpose, under­
standing, and intent of the Fourteenth Amendment 
than Petitioner would lead the unsuspecting to be­
lieve.

In his attempt to show a contrary understanding 
of the Amendment as applied to this case, Petitioner 
cites only the words of four Senators who argued in 
1874-1875 in favor of a law prohibiting separate 
schools but lost in their attempt.31 In none of these 
quotations is there an assertion that the Fourteenth 
Amendment itself prohibits separate schools. Even 
if there were, it would be most unusual to give effect 
to an interpretation of a small and unsuccessful 28

28 Gong Lum  v. Rice, 275 U.S. 78 (1927).
30 Missouri ex  rel. Gaines v. Canada, 305 U.S. 337 (1938).
31 Petitioner’s brief, 56-60.



- 4 6 -

minority of the contemporaneous proposers of the 
Amendment in disregard of the majority interpre­
tation which was actually adopted by Congress, the 
States, and the Courts.

As stated by Mr. Justice Frankfurter:

“After all, an amendment to the Constitution 
should be read in a ‘sense most obvious to the 
common understanding at the time of its adop­
tion.’ . . . For it was for public adoption that 
it was proposed. . . .

“Any evidence of design or purpose not con­
temporaneously known could hardly have influ­
enced those who ratified the amendment.”32

A. Congressional Action Before, During, and After 
the Adoption of the Fourteenth Amendment 
Clearly Indicates That the Amendment Was Not 
Intended to Remove the Power of the States to 
Provide Separate Equal Facilities for White and 
Negro Students.

The Acts of Congress and pertinent portions of the 
debates on the development and contemporaneous 
construction of the Fourteenth Amendment are set 
out at length in the Appendix hereto beginning on 
p. 128. As will be briefly summarized here, a study of 
this material shows that it was at no time considered 
by the Congress or by the States that separate equal 
schools were prohibited by the Fourteenth Amend-

32 Adamson v. California, 332 U.S. 46, 63 and 64.



— 47—

ment. Congress itself maintained separate schools 
before, during, and after the adoption of the amend­
ment. It established separate schools for Negroes in 
1862 in the District of Columbia and continued them.

After the Civil War, it enacted the Civil Rights 
Bill of 1866 which gave certain specific rights to the 
Negro. That bill was specifically amended so as not 
to apply, in ter  alia, to separate schools. Because of 
the doubts concerning its constitutionality, and in 
order to perpetuate the rights which were granted, 
the Fourteenth Amendment was adopted. The 1866 
Act is therefore important for its bearing on the 
meaning of the Amendment.

During the debates on the Amendment, Congress 
conveyed land for its separate Negro schools in the 
District and enacted other laws for such schools. 
Immediately after the adoption of the Fourteenth 
Amendment, Congress passed other laws regulating 
the separate school system of the District. Subse­
quent attempts by Senator Sumner et al. to abolish 
separate schools in the District were defeated. The 
Civil Rights Act of 1875 was specifically amended to 
exclude public schools from its provisions in order 
to leave the matter to the States. The Congressional 
interpretation that separate schools may be constitu­
tionally maintained continues today.

It is true that there are speeches by some who 
ardently advocated the complete intermingling of the 
races; for example, as set out in Petitioner’s brief, 
those of Senators Sumner, Frelinghuysen, and Bout- 
well of Massachusetts and some of the Reconstruc­
tion Republicans from the South, such as Senator



Pease of Mississippi.33 But as stated by Mr. Justice 
Frankfurter,

“Remarks of a particular proponent of the 
amendment, no matter how influential, are not 
to be deemed part of the amendment.”34

What is most important is what the Congress and 
the States did, and what Congress (or a majority of 
it) intended as a body.

This background and contemporaneous construc­
tion with reference to the public schools is, we think, 
of extreme importance to an understanding of the 
real and intended meaning of the Amendment and 
those who enacted it. It is set out in the Appendix 
only in the interest of brevity. It will be here sum­
marized.

In 1862, Congress enacted laws to provide schools 
for Negroes in the District of Columbia35 under 
the direction of a “Board of Trustees for Colored 
Schools.” The Statutes were amended in 1864 to 
require that a proportionate part of all school tax 
money should go to the Negro schools.36

In January, 1866, Senator Trumbull of Ohio in­
troduced the First Supplemental Freedmen’s Bureau 
Bill and the bill which became the Civil Rights Act 
of 1866.37 The Freedmen’s Bill, which never became

33 This gentleman removed from the State to Dakota 
shortly after the Reconstruction Period, where he was em­
ployed by the U. S. Land Office. Biographical Directory 
of the American Congress 1774-1927, p. 1395. He is re­
ferred to in Garner’s Reconstruction in Mississippi as a 
“carpetbagger.” p. 243.

34 Adamson v. California, 332 U.S. 46, 64.
35 Appendix p. 128. 12 Stat. 394, 407, and 537 (1862). 

This whole section of the brief is fully footnoted in the Ap-

- 4 8 -



■ 4 9 -

law because of President Johnson’s veto, dealt prin­
cipally with the government of the South. It author­
ized the Bureau to procure school buildings, but noth­
ing in the debates indicates any desire to force mixed 
schools. It had a section on civil rights for Negroes, 
not including any reference to schools.36 37 38

1. The Civil Rights Act of 1866

The Civil Rights Act of 1866 is particularly im­
portant because of the very large number of the 
members of Congress who intended and believed that 
its provisions became embodied in the first section 
of the Fourteenth Amendment.39 The bill in section 
one defined who were citizens of the United States. 
As originally introduced, it followed with very broad 
language as to civil rights:

“. . . there shall be no discrimination in the 
Civil Rights . . . among the inhabitants of any 
State . . .  on account of race . .

It continued to provide that

“. . . the inhabitants of every race . . . 
shall have the same rights to make and enforce

(Ftn. 35 Cont’d) pendix and in the interest of brevity, ref­
erences will generally be to the Appendix only.

3613 Stat. 187 (1864).
37 Appendix p. 130. In their brief the Committee of Law 

Teachers state that the Civil Rights Act was introduced by 
Senator Wilson. The bill (S. No. 9) to which they refer 
was introduced and debated for several days but was super­
seded by Senator Turnbull’s Bill (S. No. 61) which became 
the Civil Rights Act of 1866.

38 Appendix p. 131.
_39 Appendix p. 133; 39th Cong., 1st Sess., p. 319. Congres­

sional references in this section are to the Congressional 
Globe through 1873 and to the Congressional Record there­
after.



- 5 0 -

contracts, to sue, be parties, and give evidence, 
to inherit, purchase, lease, sell, hold and convey 
real and personal property, and to full and equal 
benefit of all laws and proceedings for the se­
curity of person and property, and shall be sub­
ject to like punishments, pains, and penalties, 
and none others, any law, statutes, ordinances, 
regulations, or customs to the contrary notwith­
standing.”40

The House floor leader for the bill, Rep. Wilson of 
Iowa, explained the broad language, first set out 
above, of his bill. He said:

“By no means can they be construed . . . nor 
do they mean that . . . their children shall at­
tend the same schools. These are not civil rights 
or immunities.”41

But the House was not satisfied with the general 
language of the bill. Mr. Bingham, in addition to 
thinking the bill unconstitutional, thought the lan­
guage too broad.42 Mr. Wilson replied to Mr. Bing­
ham, who was an attorney:

“He knows, as every man knows, that this bill 
refers to rights which belong to men as citizens 
of the United States and none other; and when 
he talks of setting aside school laws . . .  by 
the bill now under consideration, he steps be­
yond what he must know to be the rule of con­
struction which must apply here.”43

40 39th Cong., 1st Sess., pp. 474, 1117.
41 Appendix p. 134.
42 Appendix p. 135; 39th Cong., 1st Sess., p. 1117. He 

moved to strike the general words. Appendix p. 135; 39th 
Cong., 1st Sess., p. 1271.

43 Appendix p. 136; 39th Cong., 1st Sess., p. 1291.



— 51

Nevertheless, Mr. Wilson had the bill recommitted, 
and it was amended to take out the broad language 
quoted in the first paragraph above. In that form 
the bill was enacted and passed over the President’s 
veto.44 45 The rights sought to be protected were those 
specifically quoted in the second paragraph above.4D

2. The Resolution Proposing the Fourteenth Amendment

Because of the doubts as to its constitutionality 
and in order to place the Act of 1866 beyond Con­
gressional repeal, the Republicans desired to put it 
in the Constitution. The Fourteenth Amendment 
was therefore proposed. Most of the debates on the 
resolution are not available because it was discussed 
and formulated in the caucuses of the Republican 
party and in the deliberations of the “Joint (Con­
gressional) Committee of Fifteen on Reconstruc­
tion.”46

We do know that broader language as to civil 
rights was proposed but not adopted. For example:

“All provisions in the Constitution or laws of 
any State, whereby any distinction is made in 
political or civil rights or privileges on account 
of race, creed or color, shall be inoperative and 
void.”47

44 Appendix p. 138.
45 Mr. Justice Black in the appendix to his dissent in the 

Adamson case referred to that Act as one of “certain de­
fined civil rights.” 332 U.S. 46 at 99.

46 Appendix pp. 139 to 151.
47 Appendix p. 140; Kendrick, The Journal of the Joint 

Committee of Fifteen on Reconstruction (1914), p. 215.



— 52—

A reading of the Journal of the Committee of Fif­
teen fails to disclose any reference whatever to the 
regulation of public schools. There is no inference 
that the resolution proposed was intended to force 
mixed schools. The Journal’s reports dealt largely 
with other reconstruction problems. Neither the 
majority nor minority report of the Committee to 
Congress contained any reference to schools or any 
inference that the resolution proposed to cover more 
than the rights embodied in the Act of 1866.

A great many members of both houses made 
speeches indicating that they intended to embody the 
guarantee of the 1866 Act into the Constitution. 
These included Representatives Thaddeus Stevens, 
Broomall, Thayer, and Boyer of Pennsylvania, Ray­
mond of New York, Eldridge of Wisconsin, and Eliot 
of Massachusetts.48 Mr. Rogers of New Jersey said 
that the amendment was no more than “an attempt 
to embody in the Constitution . . . that outrageous 
and miserable Civil Rights Bill.”49

Debate in the Senate indicated that the under­
standing of some Senators was that section one in­
corporated the Civil Rights Bill into the Constitu­
tion ; and those who gave it a broader interpretation 
thought it gave Congress the power to prohibit dis­
criminatory legislation.50 No Senator indicated that 
its effect would be to abolish separate schools.

3. Acts Relating to Separate Schools in the District

All the time Congress debated the resolution on the 
Fourteenth Amendment, it was operating separate 4 * *

4S See Appendix p. 146 for these references.
49 39th Cong., 1st Sess., p. 2537.
50 Appendix pp. 147 to 149.



- 5 3 -

schools for white and Negro children in the District.51 
Congress debated the Fourteenth Amendment be­
tween February and June, 1866. During that time, 
on May 21, 1866, Congress enacted a bill donating 
real estate in the District for the separate Negro 
schools.52 Between April and July, 1866, Congress 
considered and enacted a bill changing the tax sup­
port for the separate Negro schools of the District. 
In 1867 Senator Sumner proposed to require that the 
Constitutions of the Southern States must provide 
for “a system of public education open to all, with­
out distinction of race or color,” before the State 
could seat its representatives in the Congress. His 
proposition was defeated.53

4. The Period Immediately Following the Adoption of the
Fourteenth Amendment in 1868

The Fourteenth Amendment was declared adopted 
July 28, 1868.54 A bill which had passed the Senate 
in July, 1868, was passed by the House on February
5, 1869, changing only the administration of the 
separate schools in the District. The bill transferred 
the duties of the Negro trustees of the Negro schools 
to the (white) trustees of the public schools. The 
bill, of course, left the schools separate. The Ne­
groes were greatly disturbed, not because the schools 
were separate, but because they wanted Negro trus-

51 Appendix p. 151.
5218 Stat. 343 (1866).
53 Appendix p. 152; 40th Cong., 1st Sess., p. 170.
54 Fairman, Does the Fourteenth Amendment Incorporate 

the Bill of Rights ? The Original Understanding, 2 Stanford 
Law Rev. 134 (1949).



- 5 4 -

tees for their separate schools. President Johnson 
vetoed the bill for that reason.55

Thus, almost immediately after the adoption of 
the Fourteenth Amendment, the Congress re-exam­
ined its laws relating to separate schools and merely 
proposed to change the administration of them by 
consolidating the duties of the school boards. This 
is convincing proof that the Congress which proposed 
the Amendment did not construe it to require the 
abolition of separate schools.

In May, 1870, the Civil Rights Bill of 1866 was 
re-enacted in Section 18 of “The Enforcement Act 
of 1870.” It is significant that the 1866 Act was 
not changed; no new sections or provisions were 
added.

In 1871 a sustained attempt was made in Con­
gress to require abolition of separate schools in the 
District. The bill was defeated and Congress ad­
hered to separate schools. The debates on this indi­
cate that the States and their representatives in the 
Congress clearly believed that the power to provide 
separate or mixed schools remained in the States. 
Senator Patterson of New Jersey said that the law 
of the Northern States was that the boards of edu­
cation were free “to determine for themselves 
whether they would mix the whites and blacks or 
have separate schools.”56 He thought mixed schools 
would destroy the public school system and that it 
would cause a loss of public support for their schools 
because the whites would withdraw. Senator Thur­
man of Ohio said the common schools were having 
difficulty enough without saddling the system with

55 Appendix p. 153; 40th Cong., 3rd Sess., p. 1164.
56 Appendix p. 154; 441st Cong., 3rd Sess., pp. 1053-4.



— 55—

a compulsory mixing of the races. He thought the 
Government should not force sociological ideas on the 
people; that communities should be left to choose for 
themselves separate or mixed schools.

5. Mr. Sumner’s Recognition in 1871 That Mixed Schools 
Were Not Required

In October, 1871, Mr. Sumner recognized and said 
that mixed public schools were not then required and 
that the Civil Rights Act needed amending in that 
regard. To a convention of Negroes he wrote,

“The right to vote will have new security 
when your equal rights in . . . common schools 
is at last established. . . . This d efect has been  
apparent from  the beginning; and, for a long 
time I have striven to remove it.”57

6. The Senate’s Passage of Sumner’s Civil Rights Bill in 
1872 After Deleting References to Schools 

and Churches

Another attempt to enact a broad civil rights bill, 
including a provision for mixed schools, was made 
by Mr. Sumner in 1871-1872. An amnesty bill to 
remove disabilities imposed on Southerners by the 
third section of the Fourteenth Amendment was pro­
posed. It needed a two-thirds majority to pass. In 
the Senate, Mr. Sumner moved to amend by adding 
his broad civil rights bill to the amnesty bill. The 
series of maneuvers and debates on this situation are 
set out in the appendix, pages 157 to 164. Sumner 
was successful in two preliminary skirmishes in

57 Appendix p. 157, note 94.



- 5 6 -

getting his bill added as an amendment to the am­
nesty bill in the Senate. But the amnesty bill, after 
it was added, failed to pass the Senate. Finally the 
Sumner bill was considered separately; and after 
the references to mixed schools and churches was 
deleted, it was passed by the Senate.58 His bill, even 
as amended, did not pass the House. During the 
debates, Senator Frelinghuysen, whom Petitioner 
quotes at length on page 60, proposed to amend the 
Sumner bill to exempt certain separate schools with 
a provision that:

“ . . . churches, schools, cemeteries . . . 
established exclusively for either the white or 
colored race, should not be taken from the con­
trol of those establishing them, hut should re­
main devoted to their vise.” 59

And Mr. Sumner accepted the amendment.60 If 
separate schools were unconstitutional, those previ­
ously established could not be excepted. But the Con­
gress knew separate public schools had not been in­
validated by the Fourteenth Amendment.

It is also noteworthy that during the debate, Sen­
ator Trumbull of Illinois, who had introduced into 
the 39th Congress (which proposed the Fourteenth 
Amendment) the Civil Rights Act of 1866 and the 
Freedmen’s Bureau bill, said,

“The right to go to school is not a civil right 
and never was . . . it is a privilege.”61

08 Appendix p. 163.
59 Appendix p. 159; 42nd Cong., 2nd Sess., pp. 435, 487.
60 Appendix p. 159; 42nd Cong., 2nd Sess., p. 453.
01 Appendix p. 161; 42nd Cong., 2nd Sess., p. 3189.



- 5 7 -

Senator Ferry of Connecticut said that in the 
Northern States and in the District students were 
separated by race and by sex and given equal ad­
vantages.62 The general feeling of the majority was 
expressed by the Senator from Connecticut:

. . in the community where I reside there 
is no objection to mixed schools . . . and if I 
were called upon to vote there, I should vote for 
them. It would be a useless expense to estab­
lish separate schools for the few colored people 
in that community. But I cannot judge other 
communities by that community. . . .  I believe 
the Senator’s bill relating to the District of 
Columbia, for instance, would utterly destroy 
the school system in this District. . . .

“Take for instance the State of Ohio where 
I understand the law permits the districts to 
have mixed or separated schools . . . and I 
observe a decision of the Supreme Court of Ohio 
reported in yesterday’s newspaper . . .  It had 
(there) been the assertion . . . that compelling 
the separation of the races into different build­
ings was a violation of the 14th amendment, 
notwithstanding that both races . . . enjoyed 
the same or equal privileges . . . but that Court 
. . .  of judges whose political opinions are like 
those of the majority of this body . . . ‘sus­
tained the constitutionality . . .  of the common 
school laws . . . and held that the organiza­
tion of separate schools for colored children is 
not in conflict with the provisions of the four­
teenth amendment.’ I believe that that decision 
is good law.”

_ Again in 1872 Mr. Sumner attempted to pass a 
bill to require mixed schools in the District. Mr.

62 Appendix p. 161; 42nd Cong., 2nd Sess., p. 3190.



— 58—

Stockton of New Jersey said that what Mr. Sumner 
wanted was not equal rights but the forced inter­
mingling of the races.63 Senator Ferry of Connecti­
cut thought the bill tyrannical and that a vote should 
be taken to see if the people of the District wanted 
separate or mixed schools.64 Mr. Edmunds of Ver­
mont put the matter squarely up to the Senate:

“It is a matter of great importance that we 
should determine fairly and squarely whether 
in the District of Columbia, where we have the 
power, that we shall exercise it . . .”

The Congress did determine the matter, just as 
it had in the past: that separate schools were not re­
quired. The bill was defeated and Congress con­
tinued to maintain separate schools.

7. Action and Debates on the Civil Rights Act of 1875

Debates on the two bills (S. R. 1 and H. R. 796) 
extended from 1873 to 1875. During this period, 
Congress enacted further legislation regulating the 
separate schools for white and Negro children in the 
District. Its Acts provided among other things that:

“Any white resident shall be privileged to 
place his or her child . . .  at any one of the 
schools provided for . . . white children . . . 
and any colored resident shall have the same 
rights with respect to colored schools.”

The Mil dually adopted as the Civil Rights Act 
19$ Hv &  Mix R ~R. 1. p^ed

'-1 Appendix •>'. tie . i£nd Caisg . 2nd. Jess.. -_\ £540.
' A?sViKr.\ ?. ' V tend Cvttg . 2nd Jess.. 3124. 3125.



■59—

the Senate but never passed the House. It was the 
House bill which the Senate ultimately adopted.

It is true that certain amendments were defeated 
in the Senate during its consideration of S. R. 1 
which never became law. But the assertion on page 
58 of Petitioner’s brief that “the Senate of the 42nd 
Congress concluded that ‘separate but equal’ schools 
if established . . . were a violation of the Four­
teenth Amendment” is incorrect. He cites no au­
thority for the statement. What he probably refers 
to is a vote in the 43rd Congress which defeated a 
proposed amendment in the Senate to Mr. Sumner’s 
bill (S. R. 1) to specifically except separate schools.65

It will be remembered that the Senate earlier 
(1872) had specifically amended Sumner’s Civil 
Rights bill by deleting reference to schools and 
churches and had passed it in that form.66 On this 
occasion Mr. Sumner was successful in defeating the 
amendment. But the Senate later adopted H. R. 796 
from which the reference to schools was omitted to 
leave the matter to the States.67

The opinions of some of the other Senators are en­
lightening to show the view which ultimately pre­
vailed in the Senate. Senator Stockton of New Jer­
sey said the regulation of the schools was a matter 
of State concern. The New Jersey Legislature, he 
said, would not pass a compulsory mixed school law: 
“They know their constituents do not desire it. They 
know it is not right.” The Negroes, he said, are en­
titled to “equal” rights; but equal rights do not mean 
“the same” facilities.

65 43rd Cong., 1st Sess., p. 4167.
06 See p. 55, supra.
67 43rd Cong., 2nd Sess., pp. 997, 1010, 1870.



- 6 0 -

Senator Alcorn, a Republican of Mississippi, said 
that the Negroes were in control of his State; and 
so “self protection, if I had no higher motive would 
move me to support . . . this bill.” But as to mixed 
schools he said:

“You say that you do not want the schools 
mixed. Well, I am not in favor of mixing them; 
and I consider that this bill does not mix them. 
. . . How is it in my State? There . . .  the 
colored people control; they make the laws; they 
levy the taxes; they appoint the school board. 
The whole machinery is in their hands; yet there 
is not a mixed school in the State . . . and we 
have civil rights there. Why is it? Simply be­
cause the colored people do not desire it; be­
cause they believe the interests of both races 
will be promoted by keeping the schools sep­
arate.”

And Senator Saulsbury of Delaware, who had 
been in the 39th Congress, said that the Fourteenth 
Amendment did not remove the States’ police power 
to have separate schools. Other speeches of this 
nature are set out in the Appendix.

8. Action on H. R. 796 Which Became the 
Civil Rights Act of 1875

It was the House Bill, from which the reference to 
schools was intentionally deleted to leave the matters 
to the States, which was finally passed by both Houses 
and became the Civil Rights Act of 1875. The de­
velopment of the House Bill is most informative. In­
troduced by General Butler in 1873, it contained 
broad language, including language which might



— 61

have been construed to require mixed schools.68 The 
opposition to the mixed school provision was so 
strong that Butler himself moved to recommit the 
bill to committee. He said:

“But there are reasons why I think this ques­
tion of mixed schools should be carefully con­
sidered. The Negroes . . . have never, until 
the last few years, had an opportunity for edu­
cation. . . . Therefore in the Negro schools 
which I established as a military commander 
during the war, I found that while I had plenty 
of school boys with ‘shining morning faces,’ 
there were none ‘creeping unwillingly to school.’ 
. . . And I shall recommit the bill . . .  be­
cause I want time to consider whether upon the 
whole it is just to the negro children to put them 
into mixed schools. . . .

“And therefore I am quite content to consider 
this question in the light of what on the whole is 
best for the white and colored child before this 
matter is again before the House.”69

Mr. Butler, who had been in the 39th Congress 
which proposed the Fourteenth Amendment, did not 
construe that amendment to require mixed schools. 
Otherwise he would not have been willing to consider 
the expediency of the separate school amendment.

The bill was recommitted and came out of commit­
tee specifically amended to allow separate schools. 
That portion of the bill, as it was debated in the 
House in February, 1875, contained the original 
words which were construed by some as prohibiting 
separate schools. It also contained the Judiciary 
Committee amendment:

68 Appendix p. 167; 43rd Cong., 1st Sess., p. 378.
69 Appendix p. 172; 43rd Cong., 1st Sess., pp. 455-457.



■62—

“Provided, That if any State or the proper 
authorities in any State, having the control of 
common schools or other public institutions of 
learning aforesaid, shall establish and maintain 
separate schools and institutions, giving equal 
educational advantages in all respects for dif­
ferent classes of persons entitled to attend such 
schools and institutions, such schools and insti­
tutions shall be a sufficient compliance with the 
provisions of this section so far as they relate 
to schools and institutions of learning.”

Three principal amendments were offered from 
the floor. Mr. Cessna  of Pennsylvania proposed to 
substitute the words of the (Sumner) Senate Bill.70 
Mr. W h ite  of Alabama proposed to allow separation 
of the races at inns, theaters, schools, and public con­
veyances.71 Mr. K ellogg  of Connecticut moved to 
strike the words of the original bill as to schools and 
also the proviso added by the House Judiciary Com­
mittee ; i. e., to delete all reference to schools.

Mr. Kellogg explained his amendment to the 
House before the vote:

“The amendment I have proposed is to strike 
out of the House bill reported by the Committee 
on the Judiciary all that part which relates to 
schools; and I do it, Mr. Speaker, in the interest 
of education, and especially in the interest of 
education of the colored children of the Southern 
States. . . . The proviso to the first section is 
one that makes a discrimination as to classes of 
persons attending public schools; and I do not 
wish to make any such provision in an act of 
Congress.

70 Appendix p. 181; 43rd Cong., 2nd Sess., p. 1011.
71 Appendix p. 181; 43rd Cong., 2nd Sess., p. 939.



63—

“But upon this school question we should be 
careful that we do not inflict upon the several 
States of the Union an injury that we ought to 
avoid. A school system in most of the Southern 
States has been established since the war of the 
rebellion, by which the colored children of the 
South have the advantages of an education that 
they never could have before that time. I be­
lieve, from all the information I can obtain, that 
you will destroy the schools in many of the 
Southern States if you insist upon this provi­
sion of the bill. You will destroy the work of 
the past ten years and leave them to the mercy 
of the unfriendly legislation of the States where 
the party opposed to this bill is in power. And 
besides, this matter of schools is one of the sub­
jects that must be recognized amd controlled by 
State legislation. The States establish schools, 
raise taxes for that purpose, and they are also 
aided by private benefactions; and they have a 
right to expend the money, so raised, in their 
own way. . . .”72

The Kellogg amendment was adopted and the bill 
passed the House.73 The Senate passed the House 
bill as it had been amended,74 and it became law 
March 1, 1875.75

9. The Present Acts of Congress Providing for and 
Recognizing Separate Schools

The interpretation by the Congress that the Con­
stitution authorizes the maintenance of separate

72 Appendix p. 184; 43rd Cong., 2nd Sess., p. 997.
73 Appendix p. 185; 43rd Cong., 2nd Sess., pp. 1010, 1011.
75 rd <-'ong'-> 2n(l Sess., p. 1870.

2013. This Court declared section one of this 
ohl invalid. Civil Rights Cases, 109 U.S. 3 (1883).



- 6 4 -

equal schools has continued to the present. It main­
tains separate schools in the District of Columbia.76 
It provides appropriations for land-grant colleges 
maintained on a separate basis, the Act specifically 
recognizing separate colleges for white and Negro 
students.77 And it provides appropriations under 
the National School Lunch Act to be expended in sep­
arate schools for white and Negro students.78

!B. The Legislatures of the States Contemporane­
ously Construed the Fourteenth Amendment as 
Leaving to Them the Power to Maintain 
Separate or Mixed Schools.

The Fourteenth Amendment was adopted for the 
people by the Legislatures of the States. The inten­
tion and understanding of these bodies is therefore 
important in interpreting the meaning of the Amend­
ment. An examination of the contemporaneous Acts 
of the State Legislatures of the “loyal” States, which 
Acts are summarized in the appendix hereto begin­
ning on page 194, will demonstrate the uniformity 
of the legislative construction that the Fourteenth 
Amendment did not lift this problem out of the hands 
of all the State legislatures and settle it. On the con­
trary, the Legislatures, which were represented in 
Congress at the time when the Amendment was 
adopted, continued to exercise their own sound dis­
cretion as to the wisdom of maintaining separate

76 D. C. Code, Sec. 31-1110 et seq. and 31-109.
77 These acts are discussed at length, Appendix p. 187; 

7 U.S.C. § 323. These colleges include Texas A. & M. (white) 
and Prairie View A. & M. College (Negro).

78 Appendix p. 193; 60 Stat. 233 (1946); 42 U.S.C. 
§ 1760(c).



- 6 5 -

equal schools for their white and Negro students or 
maintaining mixed schools for the races.70

For example, Indiana, which ratified the Amend­
ment in 1867, enacted in 1869 a law authorizing 
school trustees to “organize the colored children into 
separate schools.” Kansas, which adopted the Amend­
ment in 1867, authorized the establishment of sep­
arate schools in 1868. The statute was continued in 
force and re-enacted in 1879. New York, which con­
tinued its separate schools until its legislative act of 
1900, enacted legislation as to separate schools as 
late as 1894. California, adopting the Amendment in 
1868, authorized in 1869 the establishment of sep­
arate schools for Negroes and Indians. Missouri 
wrote into its Constitution in 1875 a provision for 
“Separate free schools” for Negroes. Maryland appro­
priated money in 1870 for the support of separate 
schools. The Kentucky General Assembly author­
ized separate schools by statute in 1871 and 1872 
and wrote the policy into its Constitution of 1891. 
New Jersey established an industrial school for Ne­
groes in 1895 although in 1881 (15 years after 
it adopted the Amendment) it enacted a statute 
that no child should be excluded from any public 
school on account of color. Massachusetts had estab­
lished a policy of providing mixed schools before 
the adoption of the Amendment. West Virginia estab­
lished separate schools in 1865, adopted the Four­
teenth Amendment in 1867, and enacted a statute in 
1871 that “white and colored persons shall not be 
taught in the same school.” Delaware, of course, con­
tinues to authorize separate schools by Constitution 
and statute.

, ' See Appendix p. 194, for references to all the acts of
the States here listed.



■66—

The States above named were of the “loyal” 
States. To the list of Legislatures must be added 
those of the Confederate States which likewise con­
strued the Fourteenth Amendment to authorize sep­
arate schools. Notwithstanding the fact that Negro 
and white students did not attend the same schools 
in those Southern States (a fact well known to the 
Congress), the representatives of these States were 
re-seated in the Congress after the adoption of the 
Fourteenth Amendment. That is understandable 
since Congress itself maintained separate schools in 
the District of Columbia. In other words, it was the 
understanding and meaning of the Congress which 
proposed the Fourteenth Amendment, and of State 
Legislatures which adopted the Fourteenth Amend­
ment, that separate equal schools were constitutional 
under the Amendment.

C. The Contemporaneous Construction of the State 
and Other Federal Courts Supports This Court's 
Opinion as to the Meaning of the Fourteenth 
Amendment With Reference to Schools

The uniform construction of the Supreme Courts 
of the States and the Federal Courts during the 
period immediately following the adoption of the 
Fourteenth Amendment (and thereafter as well) 
was that the Fourteenth Amendment did not remove
the pow er o f  the leg is la tu res  to o: 
m ixed  schools. And w h ere  sera ; 
had been or w ere  established, their

mvide separate or 
rate equal schools 
;'scohi:shment and

m ain ten ance w as .. ohchi. ‘."'.ese earm trterureca-
::on e  bv C ou rts  v :'o se  m em oe s  rad me m oornxni"j



— 67—

to observe the proposal and adoption of the Amend­
ment, and who had the benefit of counsel who were 
able to argue first hand the meaning of the Amend­
ment so recently adopted, are of considerable sig­
nificance.

One of the earliest cases after the adoption of the 
Amendment in 1868 was decided by the Ohio Su­
preme Court in 1871.80 That opinion considered at 
length the effect of the Amendment and concluded 
that the State’s statute providing separate equal 
schools for white and Negro students was constitu­
tional. In 1872 the New York court held that where 
the separate schools were equal, the separation did 
not violate the Fourteenth Amendment.81

In 1873 the Pennsylvania court upheld that State’s 
statute providing for separate schools against the 
contention that it violated the Fourteenth Amend­
ment.82 The California Supreme Court, in 1874, 
rendered a similar opinion.83 Also in 1874, the In-

80 State v„ McCann, 21 Ohio St. 198.
81 People ex rel. Dietz v. Easton, 13 Abb. (N.Y.) Pr. 

(N.S.) 159. The New York Court had held in 1869 that the 
Civil Rights Act of 1866 did not invalidate the separate 
schools for Negro and white students in Buffalo, N. Y. It 
said, “It was no part of the Civil Rights bill to regulate or 
provide for the enjoyment of rights or privileges of the 
nature of those in controversy. . . It is clear that the right 
or privilege of attending a school provided for white chil­
dren is not among those included in this section.” Dallas v. 
Fosdick, 40 How. Prac. 249. The highest court of New 
York reaffirmed this interpretation of the Fourteenth 
Amendment as to schools in People v„ Gallagher, 93 N. Y. 
438 (1883) and in People v. Borough of Queens, 161 N. Y. 
598, 56 N. E. 81 (1900).

82 Commonwealth v. Williamson, 30 Legal Int. 406.
88 Ward v. Flood, 48 Cal. 36.



— 68—

diana Court, considering the effect of the Amend­
ment on Indiana’s separate schools, said:

“In our opinion, the classification of scholars, 
on the basis of race or color, and their education 
in separate schools, involve questions of domes­
tic policy which are within the legislative dis­
cretion and control, and do not amount to an 
exclusion of either class. . .

The Indiana Court, even at that early date, went 
back to consider contemporaneous construction:

“The action of Congress, at the same session 
at which the fourteenth amendment was pro­
posed to the States, and at a session subsequent 
to the date of its ratification is worthy of con­
sideration as evincing the concurrent and after- 
matured conviction of that body that there was 
nothing whatever in the amendment which pre­
vented Congress from separating the white and 
colored races, and placing them . . .  in dif­
ferent schools. . . .” Si

Other cases of a similar nature during that period 
are set out in the Appendix beginning on page 200.

Argument

In the light of the foregoing history and contem­
poraneous construction of the Fourteenth Amend­
ment, the opinions of this Court on the meaning of 
the Fourteenth Amendment as applied to the public 
schools are eminently correct. The Congress did not 
intend in the Civil Rights Acts or in the proposal of 84

84 C ory v. Carter, 48 Ind. 327.



— 69—

the Fourteenth Amendment to take from the States 
the power to decide for themselves whether it was 
best for the education of the children of the State 
that white and Negro students should be taught in 
the same classroom or in separate buildings with 
equal facilities for all. That Congress had such in­
tention is clearly evidenced by the fact that all dur­
ing that period (and even today) it maintained sep­
arate schools in the District of Columbia.

The same construction was placed on the Four­
teenth Amendment by the Legislatures of the States 
which adopted the Amendment for the people of the 
United States. This is unquestionably shown by 
their contemporaneous legislation establishing or 
continuing to maintain separate or mixed schools for 
Negro and white students.

Furthermore, the State and Federal Courts, in the 
period immediately following the adoption of the 
Amendment, agreed that the Amendment meant that 
the States could constitutionally maintain separate 
schools where equal facilities were furnished to all 
groups.

All of the foregoing: the intended construction of 
Congress which proposed the Amendment, the un­
derstanding of the State Legislatures in adopting it, 
the construction of the State and Federal Courts, and 
the opinions of this Court set out in Section I of this 
brief, lead to the inescapable conclusion that it was 
and is the law of the land that States have the con­
stitutional power to separate their white and Negro 
students for educational purposes where they furnish 
equal facilities and opportunities for both races. The 
opinions of this Court, which have correctly decided 
this proposition, should be followed in this case.



- 7 0 -

Third Point

The power of the States to classify and the reason­
ableness of the classification in this case have been 
determined by this Court. Based on those decisions, 
the trial Court properly refused to go behind the 
Texas Constitution and the Legislative Acts to de­
termine the reasonableness of or necessity for such 
classification. The trial Court therefore properly 
excluded evidence thereon.

A. The classification has been determined by this 
Court to be reasonable. The trial Court therefore 
correctly limited the testimony to the fact question 
of the equality of the schools in question.

B. If this Court disagrees with its previous de­
cisions, or deems it proper to make a new, independ­
ent determination of the reasonableness and neces­
sity for the classification made by the people of Texas 
in their Constitution and by the Legislature, then 
there is ample evidence to support such determi­
nation.

C. If the Court goes behind its own decisions and 
the Constitution and Statutes of Texas on the ques­
tion of reasonableness, and if it decides that it has 
not sufficient material from the record, the briefs, 
and its judicial knowledge to find any reasonableness 
in the classification made by Texas, the Southern 
States, and the Congress, then, and only in that 
event, Respondents are entitled on a new trial to 
fully develop that proposition.



- 7 1 -

Preliminary Statement

This Court in its opinions herein set out under 
Point I has considered and decided that the States 
have the power, in the furnishing of education, to 
separate their students, and that such a classification 
is not unreasonable.

The desirability and expediency of maintainting 
separate schools for white and Negro students or 
mixing them in the same classroom are matters for 
legislative determination.85 The pedagogical argu­
ments of sociologists and educators, which occupy 
much of Petitioner’s brief, are properly to be ad­
dressed to those forming the policies of the State as 
to the manner in which it, at its own expense, will 
provide education. As this Court has properly held, 
such matters are for the States themselves to decide. 
When equal facilities are offered, the Federal Courts 
may intervene only if it can be said that, as a matter 
of law, the classification is so completely unreason­
able as to be violative of the Federal Constitution. 
The Federal Courts, as said by Mr. Justice Jackson, 
should not be induced to “accept the role of a super 
board of education for every school district in the 
nation.”86

A school district may separate its students by their 
height, by their names, by sex, et cetera. Such sepa­
ration is not the exercise of its police power, at least 
as that term is ordinarily understood. It is but the

85 “We must remember that on this particular point we 
are interpreting a constitution and not enacting a statute.” 
Carr v. Corning, U. S. Ct. of App., D. C., Feb. 14, 1950.

80 McCollum v. Board o f  Education, 333 U.S. 203 at 237 
(1948).



■72—

exercising of the inherent power of the State to 
manage its own schools. And so long as each is given 
substantially the same facilities and advantages, 
each is given “the equal protection of the laws.”

It is that inherent power to operate its schools in 
the manner deemed best for all the students, together 
with the State’s police power to preserve and main­
tain the public welfare, peace, safety, and happiness 
of the people, that is the basis for the provision in the 
Texas Constitution.

It is respectfully submitted that this Court should 
follow its former decisions.87 But if it deems it 
proper to put aside those precedents and examine the 
question anew, it will find that there is today ample 
evidence to support the classification the people of 
Texas have written into their Constitution and sup­
plemented by Legislative Acts. With that in view, 
the reasonableness of and the necessity for the exer­
cise of the police power, ably developed in the 
A m icus brief of the Southern States, will be dis­
cussed.

A. The Classification Has Been Determined by 
This Court to be Reasonable. The Trial Court 
Therefore Properly Limited the Testimony to 
the Fact Issue of the Equality of the Schools 
in Question.

The decisions of this Court set out under Point I 
clearly demonstrate that this Court has carefully

87 As stated by Mr. Justice Reed: “This Court cannot be 
too cautious in upsetting practices embedded into our society 
by many years of experience. A state is entitled to have 
great leeway in its legislation when dealing with the impor­
tant social problems of its population.” Id.,, note 1 at 256.



— 73—

and repeatedly held that the States may separate 
their white and Negro students and provide equal 
education for them at separate schools. The hold­
ing is expressly made in some and is necessarily im­
plicit in others that the classification of the students 
is not unreasonable. In the interest of brevity, only 
short quotations from a few of the cases will be set 
out as illustrative.

Mr. Justice Clifford’s concurring opinion in the 
DeCuir case which was cited with approval in this 
Court’s opinion in the Chiles case:

“. . . equality of rights does not involve the 
necessity of educating white and colored per­
sons in the same school any more than it does 
that of educating children of both sexes in the 
same school, or that different grades of scholars 
must be kept in the same school; and that 
any classification which preserves substantially  
equal school advantages is not prohibited by 
either the S tate or F edera l C onstitution, nor 
would it contravene the provisions of either.” 
95 U.S. at 504.

Plessy v. F erguson , 163 U.S. 537 at 550:

“So far, then, as a conflict with the Four­
teenth Amendment is concerned, the case r e ­
duces itse lf to a question w hether the sta tute o f  
Louisiana is a reasonable regulation, and with 
respect to this there must necessarily be a large 
discretion on the part of the legislature. In 
determining the question of reasonableness it is 
at liberty to act with reference to the estab­
lished usages, customs and traditions of the 
people, and with a view to the promotion of



— 74

their comfort, and the preservation of the public 
peace and good order.”

In the Chiles case, this Court said that the Plessy 
case not only sustained the law,

“. . . but justified as reasonable the distinc­
tion between the races on account of which the 
statute was passed and enforced.”

This Court then concluded anew that:

“Regulations which are induced by the general 
sentiments of the community for whom they are 
made and upon whom they operate, cannot be 
said to be unreasonable.

“The extent of the differences based upon the 
distinction between the white and colored races 
which may be observed in legislation or in the 
regulation of carriers has been so much dis­
cussed that we are relieved from further en­
larging upon it.” 217 U.S. 71 at 77.

Similarly in Gong Lum  v. R ice, the matter was 
squarely before this Court. Mr. Chief Justice Taft 
stated the problem and the Court’s answer thereto:

“The question here is whether a Chinese cit­
izen of the United States is denied equal pro­
tection of the laws when he is classed among 
the colored races and furnished facilities for ed­
ucation equal to that afforded to all. . . .”

“Were this a new question it would call for 
full argument and consideration, but we think 
it is the same question which has been many 
times decided to be within the constitutional 
power of the state legislature. . . .”



— 75—

. . The decision is within the discretion 
of the State in regulating its public schools and 
does not conflict with the Fourteenth Amend­
ment.” 275 U. S. at 85 and 87.

The reasonableness of the classification was recog­
nized by Mr. Chief Justice Hughes when he wrote in 
the Gaines case in 1938:

“The State has sought to fulfill the obliagtion 
by furnishing equal facilities in separate 
schools, a method the valid ity o f  which has been  
sustained by our decisions.”  305 U. S. at 344.

With these decisions before it and with the Sipuel 
case which cited with approval the Gaines case, it is 
submitted that the trial Court correctly refused to 
go behind the provision of the Texas Constitution 
requiring separate impartial schools for whites and 
Negroes, and correctly excluded testimony as to the 
necessity for and the reasonableness of the classifica­
tion.88 The question as understood by the trial Court,

_88 Respondents of course object to the use by Petitioner in 
his brief of evidence not introduced or which was introduced 
and stricken, e. g., that of Dr. Thompson on pages 67-71 of 
Petitioner’s brief. The observations of this Petitioner’s 
witness (whose evidence was excluded) was reduced to 
writing and published in a magazine. What is substantially 
his excluded testimony and that of other of Petitioner’s wit­
nesses is then cited to the Court in another form. Thomp­
son, Separate But N ot Equal, The Sw eatt Case, cited in his 
brief, pp. 22, 30, 36, and 52. That and some 54 other of Peti­
tioner’s texts, surveys, reports, et cetera, were not offered 
in evidence. Most of the material in the Appendix to Peti­
tioner’s Petition for Certiorari was not even offered in 
evidence. To answer such “evidence,” Respondents have 
felt it necessary to include some material of the same char­
acter in their Reply.



— 76—

and upon which basis the case was tried, was: “Were 
the facilities offered Petitioner at the time of trial 
substantially equal . . That was the question 
and the trial Court correctly limited the testimony 
thereto.

B. If the Court Disagrees With its Previous Deci­
sions or Deems it Proper to Make an Independ­
ent Determination of the Reasonableness of 
and Necessity for the Classification Made by the 
People of Texas in the Constitution and by the 
Legislature, Then There Is Ample Evidence to 
Support Such Determination.

Respondents submit that the Court should follow 
its previous opinions which have decided that the 
furnishing of equal facilities at separate schools to 
white and Negro students does not violate the pro­
visions of the Fourteenth Amendment. Stated dif­
ferently, the Court has previously decided that this 
classification of students is a reasonable exercise of 
the powers of the State. Should the Court, however, 
decide to go behind its decisions and behind the Con­
stitution and Statutes of Texas as to the reason­
ableness of the action and the necessity therefor, it 
will find today ample evidence to support such classi­
fication.89

89 By setting out these matters Respondents do not with­
draw from their position that this question had been settled 
by the Court and that the trial court correctly excluded evi­
dence as to what happened at other places and at different 
times, and that such evidence should not be considered here. 
But Petitioner has included so much material of this sort in 
his brief that it was considered necessary to reply thereto.



■77-

At the outset, the findings and enactments of the 
Congress and of the Legislatures of 17 states should 
be taken as some evidence that the classification is 
not without reason.90 The Court is of course aware 
of the delicacy of one of the branches of the govern­
ment saying to the Congress and the State Legisla­
tures of 17 States, who have heard much of the same 
arguments, that their findings and enactments are 
completely without reasonable justification.

The Texas Legislature as late as February 28, 
1950, enacted a statute providing for separation of 
the races in State parks.91 The Legislature found in 
the preamble to that statute that:

“Whereas the necessity for such separation 
still exists in the interest of public welfare, 
safety, harmony, health, and recreation . . .”

and the emergency clause in the bill recites that:

“The fact that the policy of the State in re­
quiring separate park facilities for white and 
Negro citizens is necessary to preserve the pub­
lic peace and welfare, and to protect the privi-

90 The amicus argument of the Attorneys General of the 
Southern States ably presents the views of that section of 
the United States.

91 S. B. 19, 51st Leg., 1st Call. Sess. 1950, is set out irf the 
Appendix at page 234. The bill passed the Senate with 29 
yeas and no nays, was amended and passed by the House, 
88 to 20. The Senate on February 28, 1950, agreed to the 
House Amendments, 27 to 0. It was signed by the Governor 
on March 14, 1950. Showing the extent of the necessity for 
the separation, the bill authorizes the closing of any facil­
ities where separate equal accommodations cannot be fur­
nished, the facilities to be reopened when the equal facilities 
are available.



- 7 8 -

leges of both white and Negro citizens in the use 
of the State parks . .

Regardless of how one would vote in a Legislative 
hall on the question of mixed or separate schools, it 
is submitted that those Legislators, educators, and 
other persons who hold that the furnishing of equal 
facilities at separate schools is best for both races and 
is necessary to preserve the public peace and welfare, 
are not completely without reason. For in order for 
Petitioner to prevail, it must be decided as a matter 
of law, that those who feel that mixed schools for 
the races in the South should not be required have no 
reasonable support whatsoever for their convictions.

In addition to the consideration by the Legisla­
tures, many fair-minded citizens, both Negro and 
white, North and South, have considered the prob­
lem, its reasonableness, and its solution. Some of 
their findings and opinions, which Respondents say 
demonstrate the reasonableness of the classification, 
are here briefly set out.

L The U. S. Department of Education’s National Survey 
of Higher Education of Negroes

This series of United States government publica­
tions92 was prepared by Dr. Ambrose Caliver, (R- 
268) a Negro who was Senior Specialist on Negro 
Education in the U. S .Office of Education from 
1930 to 1945, a specialist in higher education of

92 Respondents’ Original Exhibit 15, particularly pp. U- 
91, Misc. No. 6, Vol. II.



- 7 9 -

Negroes since 1945, and a member of the N.A.A.C. 
P.93 That survey concluded that:

“Equality of educational opportunity for 
white persons and for Negroes at the level of 
higher education can be achieved, in theory, by 
either of two methods: (1) By admitting both 
white persons and Negroes to the same institu­
tion, or (2) by establishing parallel and equal 
facilities for members of the two races. In sev­
eral of the States which maintain a dual educa­
tional system, however, neither of these methods 
is actually feasible. In some of the States the 
mores of racial relationships are such as to rule 
out, for the present at least, any possibility of 
admitting white persons and Negroes to the 
same institutions. . . .” Misc. No. 6, Vol. II, 
p. 17.

Dr. Caliver then showed what a large proportion 
of the Northern Negroes voluntarily came South to 
attend separate Negro colleges:

“The erroneous assumption that northern uni­
versities are carrying an unduly large responsi­
bility for the higher education of Negroes may 
be accounted for, in part at least, by two com­
mon misconceptions. In the first place, the size 
of the northern Negro population is generally 
underestimated and, in the second place, it is 
not always known that large numbers of north­
ern Negroes go South to attend Negro col­
leges.” Id. at 82.

“Whereas very few southern Negroes were at­
tending these eight northern universities in 
1939-40, in the year preceding nearly 4,000

93 Who’s Who in Am erica  1950-51, page 409.



-80-

northern Negroes attended [separate] Negro 
colleges. Almost 3,000 of this number attended 
colleges in Southern States. The majority of 
these Negro students were residents of eight 
Northern States which rank high in economic 
resources. Thus instead of the Northern States 
carrying an undue burden in the higher educa­
tion of Negroes, it appears that the Southern 
States, which have the least wealth, are provid­
ing educational facilities for Negro residents 
from economically more favored regions.” (Id, 
at 90.)

He continued, giving reasons why the Negroes 
themselves preferred to go to a separate college:

“It is not possible, of course, to know how 
much of this southward migration is due 
to conditions within the northern institutions 
which make the Negro student feel that he does 
not secure a well-rounded college life in a mixed 
university, and how much is due to the positive 
advantages he feels are offered him in the Negro 
college.

“Some of the graduate students replying to 
the questionnaires were northern residents who 
had gone South to take their undergraduate 
work in Negro colleges. . . . Some students 
said fra n k ly  that the N egro  college offered a 
m ore norm al social l i f e ”  (Id. at 89.)

_ . . the lack of opportunity for full par­
ticipation in campus activities in the North adds 
attraction to the opportunities for leadership in 
such activities on a southern Negro college cam­
pus.”

“A common reason given for the choice of the 
Negro college was the desire for a more normal



- 8 1 -

social life. The Negroes in northern institu­
tions seldom live on the campus and seldom par­
ticipate in the social activities of the Univer­
sity. Outside of college the Negro’s social life 
is largely limited to association with his own 
people. Although southern Negro colleges oper­
ate in an area in which the total life of Negroes 
is restricted, the college campus itself is a small 
world in which the Negro student is relatively 
secure and in which he can achieve status among 
his own people.” (Id. at 90.)

To the same effect is an article in the A tlantic  
Monthly, “The Negro and His Schooling,” by Vir- 
ginius Dabney:94

“Would a handful of Negro students regis­
tered at a Southern university for whites be apt 
to find themselves in congenial surroundings? 
It seems highly doubtful. They probably would 
suffer no violence, but they would almost cer­
tainly be happier at an all-Negro institution 
providing work of equal excellence. Evidence 
of this is seen in the fact that 42 per cent of the 
student body at Fisk University, Nashville, 
comes from the North, and evidently prefers 
the homogeneity of the Fisk all-Negro student 
body to the mixed student bodies available to 
them in their home states. Moreover, about 
one fourth of these Northern Negroes remain 
in the South after graduation.”

94 Editor, Richmond Times-Dispatch; Author, “Liberalism 
in the South,” B.A. and M.A., University of Virginia; 
Litt.D., University of Richmond; LL.D., William and Mary, 
(Who’s Who in Am erica, 1948-49, page 575.) The article 
appeared in the April 1942 issue.



2. Recommendations! of the President’s Commission on 
Higher Education

A minority of highly respected men whose views 
are certainly entitled to consideration on the ques­
tion of whether or not the classification in question 
is wholly unreasonable filed a minority report to the 
President. These men were: Dr. Arthur H. Comp­
ton, Chancellor, Washington University, St. Louis; 
Douglas S. Freeman, Editor, Richmond Times-Dis- 
patch; Lewis Jones, President, University of Arkan­
sas; and Goodrich C. White, President, Emory Uni­
versity.

Their report read in part:

“The undersigned wish to record their dissent 
from the Commission’s pronouncements on seg­
regation especially as related to education in the 
South. . . . We believe that efforts toward these 
ends must, in the South, be made within the es­
tablished patterns of social relationships, which 
require separate educational institutions for 
whites and Negroes. We believe that pronounce­
ments such as those of the Commission on the 
question of segregation jeopardize these efforts, 
impede progress, and threaten tragedy to the 
people of the South, both white and Negro. . . • 
But a doctrinaire position which ignores the 
facts of history and the realities of the present 
is not one that will contribute constructively to 
the solution of difficult problems of human rela­
tionships.”95

95 H igher Education fo r  A m erican D em ocracy (1947), 
Vol. II, p. 29.



•83—

3. The President’s Committee on Civil Rights

This group of nationally known responsible citi­
zens, all of whom the President must have considered 
to be reasonable persons, was divided on the ques­
tion of education. The majority of the Committee 
recommended that the S tate legislatures enact “fair 
educational practice laws,” with boards and bureaus 
for enforcement purposes.90 As to separation of the 
races, however, the feeling of some of these highly 
respected persons is recorded as follows:

“A minority of the committee favors the eli­
mination of segregation as an ultimate goal but 
. . . opposes the imposition of a federal sanc­
tion. It believes that federal aid to states for 
education . . . should be granted provided that 
the states do not discriminate in the distribu­
tion of the funds. It dissents, however, from 
the majority’s recommendation that the aboli­
tion of segregation be made a requirement, until 
the people of the states involved have themselves 
abolished the provisions in their state constitu­
tions and laws which now require segregation. 
Some members are against the nonsegregation 
requirement in educational grants on the 
ground that it represents federal control over 
education. They feel, moreover, that the best 
way to ultimately end segregation is to raise the 
educational level of the people in the states af­
fected; and to inculcate both the teachings of 
religion regarding human brotherhood and the 
ideals of our democracy regarding freedom and 
equality as a more solid basis for genuine and 
lasting acceptance by the people of the states.”

98 To Secure These R ights, U. S. Gov. Print. Off. 1947, p. 
168: “There is a substantial division within the Committee 
on this recommendation. A maj ority favors it.”



■84

It is significant that the President has not recom­
mended those sections of the report of the majority 
of his Civil Rights Committee or the Committee on 
Higher Education regarding the elimination of sep­
arate schools in the South.

4. The Texas Bi-Racial Committee’s Recommendations

In 1944, a study was made at the direction of the 
Bi-Racial Conference on Education for Negroes in 
Texas.97 The personnel on the Committee, repre­
senting educators of both races, was of very high 
calibre.98 It considered five alternatives for improv­
ing Negro education at the graduate and profes­
sional level: (1) Admit Negroes to the white uni­
versities; (2) Provide subsidies for out-of-state 
study; (3) Regional education; (4) E stablish  anew  
sta te u n iversity  fo r  N eg ro es ; (5) Add graduate and 
professional schools to existing colleges. The Com­
mittee’s recommendation for the establishment of 
a new State university was followed by the State 
Legislature. (Ex. 16, R. 83.)

With regard to the first alternative, the admis­
sion of Negroes to existing State universities for 
white students, the report stated at page 83:

“Admission of Negroes to existing state uni­
versities for whites is not acceptable as a solu­
tion of the problem of providing opportunity

97 Respondents’ Original Exhibit 16, R. 322, 323.
98 Dr. J. J. Rhodes, Negro, President of Bishop College; 

Dr. W. R. Banks, Negro, Principal of Prairie View College; 
Dr. H. E. Lee, Negro; Dr. T. D. Brooks, Dean of Graduate 
School, Texas A. & M.; Mrs. Joe E. Wessendorf, past pres­
ident of the Texas Parent-Teachers Association; and Dr. 
T. W. Currie of the Austin Theological Seminary. (R. 323.)



— 85—

for graduate and professional study for Ne­
groes on two counts: (1) public opinion would 
not permit such institutions to be open to Ne­
groes at the present time; and (2) even if Ne­
groes were admitted they would not be happy 
in the conditions in which they would find them­
selves.”

5. The Texas Poll

About the time the Legislature convened in 1947 
to consider the establishment of the Texas State Uni­
versity for Negroes, and before the trial of this case 
in May 1947, the Texas Poll, an independent state­
wide survey of public opinion which was and is car­
ried in most of the Texas leading newspapers, pub­
lished the following results of a poll of Texas opin­
ion on this v ery  su b jec t:

“Most Negroes agree with the overwhelming 
sentiment of the white population in Texas 
that the Legislature should provide colored stu­
dents with a first-class university of their own 
instead of allowing them to enter the University 
of Texas.

“Negroes vote 8 to 5 in favor of a separate 
university, as compared with a ratio of more 
than 25 to 1 among eligible white voters.

“The Texas Poll put the question to a repre­
sentative cross section of adults in this form:

‘Under a Supreme Court ruling, Texas 
is faced with the problem of either setting 
up a first-class university for Negroes or 
allowing them to enter the University of



— 86—

Texas. What do you think ought to be 
done?’

“Here are the results, broken down to show 
the opinion of the 86 per cent of the people who 
are white and the 14 per cent who are Negroes:

W h ite Negro
Set up separate university____  79% 8%
Allow them in U.T____________  3 5
Ignore court ruling___________  1  
Don’t Know __________________  3 1

86% 14 %"

The Texas Poll in its survey released March 18, 
1950, found that “the general attitude of the adult 
public [was] much the same as it was two years ago.” 
The poll, which is set out in full in the Appendix, 
continues:

“The results show that only Negroes, as a 
group, give a majority vote to the idea of teach­
ing both races in the same universities. A sub­
stantial minority of college-trained adults sup­
ports this view, but the lower educational levels 
who make up the greater portion of the popula­
tion are strongly opposed.

“Some who favor the general policy of bar­
ring Negroes from the University say they 
would not object if one or two were admitted 99

99 The poll is set out in full on p. 86, Appendix to Respond­
ents’ Original Brief. The report continued, “In this survey, 
as in all scientific samplings by The Texas Poll, every person 
gave his opinion in strict confidence. To encourage Negro 
respondents to voice their opinions freely, the Poll uses 
trained colored interviewers to contact a cross section of 
their race.”



— 87-

to the law school or if advanced students were 
allowed to enroll in graduate courses not avail­
able elsewhere in Texas. But the majority of 
Texas adults is opposed even to these excep­
tions.”

6. The Position of the Federal Council of Churches

The Federal Council of Churches of Christ has by 
amicus brief stated to the Court its position that sep­
aration of the races is “unnecessary and undesir­
able.” To support its position it has introduced doc­
uments and opinion evidence not in the record.100 It 
is therefore considered necessary to answer that brief 
by pointing out one of the strongest arguments in 
favor of the reasonableness of the classification in 
question.

The churches who comprise the membership of the 
Federal Council, of their own choosing, maintain in 
the South churches, church schools, and denomina­
tional colleges which are in fact separate for the 
white and Negro races.101 This is true only in a

. 100 The State’s reply to the Council’s request for permis­
sion to file an amicus brief on the merits of this case is set 
out on page 228 of the Appendix. The fact of the opera­
tion of separate schools by the churches was of course rec­
ognized by Respondents before. But it was not introduced 
into the case until the Federal Council itself raised it. Be­
cause Respondents feared that the Court might be misled 
Tf fhe Council’s statement, it was felt necessary to reply 
thereto. The Council’s practice is as important as its 
preachment.

101 As an example in Texas, Southern Methodist Univer- 
and Southwestern University are supported by the 

lethodist Church and attended by white students, whereas 
oamuel Huston and Wiley College are both Methodist-Epis­
copal schools for Negroes. In Tennessee the University of



— 8 8 —

lesser degree in the North.102 They are fine schools 
and excellent churches, but they are separate just 
as the public schools are separate. The compelling 
reasons which caused the people of Texas to adopt 
such a policy undoubtedly were and are apparent to 
those forming the policy of the churches and their 
schools.

It certainly cannot be said that the policy of the 
churches in maintaining separate schools is based 
upon racial hatred and antagonism. The practice 
of the churches in the South and the policy of the 
State are the same with regard to schools and col­
leges.

7. Statement of Dr. Charles W . Eliot

While President of Harvard University, Dr. 
Charles W. Eliot addressed the Twentieth Century 
Club of Boston on the consequences of the Berea 
C ollege decision, supra. Among other things he said,

“If the numbers of whites and blacks were 
more nearly equal [in Boston] we might feel 
like segregating the one from the other in our

(Ftn. 101 Cont’d) the South (Sewanee) is a white, Prot­
estant-Episcopal school; Maryville College for white stu­
dents and Knoxville College, for Negro students are both 
Presbyterian. In Georgia, Wesleyan College is for white 
students and Paine College for Negroes; both are Methodist 
schools. In North Carolina Presbyterian-supported John­
son C. Smith University is for Negro students and Davidson 
is for whites. This is also generally true in the schools of 
churches not members of the Federal Council; e. g., Baylor 
and Wake Forest Universities (Baptist) and T.C.U. (Chris- 
tion). See Loescher, The Protestant Church and The Ne­
gro, 90-105 (1 94 8 ).

102 Loescher, op. cit., supra, at 51 et seq.; 36 Survey 
Graphic 59-62, January, 1 94 7 ; Myrdal, An American Di­
lemma 636, 868-872 (1944).



- 8 9 -

own schools. It may be that as large and gen­
erous a work can be done for the Negro in this 
way as in mixed schools. . . .

“Perhaps if there were as many Negroes here 
as there, we might think it better for them to be 
in separate schools. At present Harvard has 
about 5,000 white students and about 80 of the 
colored race. The latter are hidden in the great 
mass and are not noticeable. If they were equal 
in numbers or in a majority, we might deem a 
separation necessary.”103

After a tour of the South on which he made first­
hand observations, Dr. Eliot concluded:

“The complete segregation of the colored 
people does not seem to me necessary in the 
Northern states, or wherever the proportion of 
negroes is small. It is unnecessary, for example, 
in the public schools of Boston and Cambridge. 
If, however, in any Northern state the propor­
tion of negroes should become large, I should 
approve of separate schools for negro children.” 
II Charles W . E lio t by Henry James (1930),
p. 168.

8. Members of the Federal Judiciary

Federal District Judge John Paul104 in December 
of 1947 considered anew the question of the reason-

103 Stephenson, Race D istinctions in  Am erican Law, D. 
Appleton & Co., 1910, p. 164.

104 Republican member of 67th Congress; Special Assist­
ant to U. S. Atty. Gen. 19244-25; U. S. D'ist. Atty., W. D. of 
Va., 1929-31; Federal District Judge since 1932; Phi Beta 
Rappa. (W ho’s Who in A m erica  1950-51, p. 2125.)



■90—

ableness of a company rule separating the races on 
a common carrier. He said that,

“It may be conceded that a regulation . . . 
which was deemed reasonable a generation ago, 
may not necessarily be so at the present time.”

He concluded, after having heard witnesses on 
both sides of the question that:

“. . . I am unable to say that as of today 
the prevailing practice in the Southern states 
of the separation of white and colored passen­
gers on common carriers is arbitrary and with­
out reasonable basis. . . . Among the witnesses 
in this case were the President of the defendant 
company and the Presidents of two other bus 
companies operating in Virginia, North Caro­
lina and other Southern states. There was tes­
timony also from public officials of the states of 
Virginia and North Carolina whose duties re­
lated to the supervision of motor carriers oper­
ating in those states. All of these witnesses 
agreed in the opinion that the separation of 
white and colored persons traveling by bus with­
in the territory named was desirable and in the 
interest of both races. There is no ground for 
charging these witnesses personally with the 
harboring of racial prejudices and they testified 
with evident sincerity in expressing the view, 
born of their observation and experience, that 
the seating of white and colored passengers 
indiscriminately would increase the occasions 
for arguments, altercations and disturbances 
among passengers leading to annoyance, dis­
comfort and possible danger to passengers of 
both races. The opinion of these men whose 
activities are concerned with the operation of



— 91—

these carriers cannot be ignored in determining 
whether the rules adopted for the seating of 
passengers are reasonable ones. No matter 
how much we may deplore it, the fact remains 
that racial prejudices and antagonisms do exist 
and that they are the source of many unhappy 
episodes of violence between members of the 
white and colored races. If it is the purpose 
of the defendant here to lessen the occasions 
for such conflicts by adoption of a rule for the 
separate seating of whites and colored passen­
gers, this court cannot say that such a rule is 
purely arbitrary and without reasonable basis.

“. . . The fact that such separation has long 
been enforced in a number of states by custom 
and by the rules of common carriers operating 
in such states is a matter of public knowledge 
of which the members of Congress are fully 
aware. In fact, although efforts have been made 
over some years to induce Congress to enact 
legislation on this subject, it has consistently 
refused to attempt such regulation. There can 
be no other inference than that Congress has 
thought it wise and proper that the matter 
should be left for determination to such reason­
able rules as the carriers might themselves adopt 
and that it considered that rules providing for 
the segregation of passengers in those sections 
where they were applied were reasonable ones. 
By its refusal to nullify the practices and regu­
lations of these carriers in respect to the separa­
tion of passengers, Congress has by the strong­
est implication given its approval to them. This 
is a field of Congressional duty and responsibil­
ity. This court cannot invade it and, by usurp­
ing the powers of Congress, lay down rules by 
which thiŝ  defendant must guide the operation 
of its business— rules which Congress, in the



- 9 2 -

exercise of power specifically and solely en­
trusted to it, has refused to lay down.”105

The members of the Fourth Circuit Court of Ap­
peals in December, 1948, considered and affirmed a 
judgment holding that the regulations of a carrier 
separating the races were reasonable, saying:

“The adoption of a reasonable regulation by 
an interstate carrier for the segregation of pas­
sengers does not violate the law as laid down by 
the Supreme Court; and in  this case both tk 
reasonableness o f  the regu la tion  and the mm- 
n er  in  which it  rwas en forced  w ere fa ir ly  sub­
m itted  to the ju r y  and determined against the 
plaintiff.”106

9. The People of Texas and Their Legislature Consider 
the Separation of the Races as a Necessary 

Exercise of the Police Power

Implicit in the material heretofore set out is 
that, among other reasons for the separation of white 
and Negro students, the people of Texas and its 
Legislature have considered such action to be a nec­
essary exercise of the police power. Finding a neces­
sity “to preserve the public peace and welfare” the 
Texas Legislature, as noted, enacted a statute in Feb­
ruary, 1950, providing for a separation in the public 
parks. Underscoring the seriousness of the matter 
the statute authorized the closing of any facilities 
in the parks which are not equal until such time as 
the facilities are equal. Not a single vote was cast 
'again the bill in the Senate of Texas.

150 Simmons v. A tlantic Greyhound Co., 75 F. Supp. 166 
at 175.

106 D ay v. A tlantic Greyhound, 171 F. (2d) 59.



— 93—

That this legislation is supported by the great 
jority of the people of Texas is shown by the Texas 
Poll of March 18,1950, above referred to.

The examples of the recent breaches of the peace 
in Washington, D. C., and St. Louis, Missouri, set 
out in the am icus brief of the Southern States on 
pages 7-11 are illustrative.107 Alfred H. Stone in his 
Studies in the A m erican  R ace P roblem  relates how 
Kansas at one time operated its schools in Kansas 
City on a mixed basis. When what is described as 
occasional clashes culminated in the killing of a white 
student, the Kansas Legislature enacted a statute 
authorizing the separation of white and Negro stu­
dents in that city.108 That law is still in effect.

Texas has had no serious breaches of the peace in 
recent years in connection with its schools. The sep­
aration of the races has kept the conflicts at a min­
imum. The Texas Legislature, as evidenced by its 
1950 enactment above referred to, believes that such 
separation is still necessary for the benefit of all.

Undoubtedly one of the things which gives rise to 
necessity for separation of the races is a historic 
antipathy of many of both races for a forced close 
personal, social contact. Beside the daily associa­
tion in the classroom, at least some of which is social, 
universities and public schools officially maintain 
and sponsor extracurricular activities which do in-

. 107 That brief cites the events recently occurring in those 
cities when public swimming pools were opened to the races 
on a mixed basis and relates that because of the violence 
which followed, the Washington pool was closed and the St. 
Louis pools were returned to the policy of separation.

10S Doubleday, Page & Co., p. 69, referring to Kan. Laws 
1905, c. 414, p. 676.



— 9 4 —

volve close personal social contacts. For example, 
there are school dances, rooms or halls for visiting, 
dancing, for playing various games, swimming, and 
so forth. Also connected with colleges are dormi­
tories where the living together is on a more or less 
intimate plane.109

The racial consciousness and feeling which exists 
today in the minds of many people may be regret­
table and unjustified. Yet they are a reality which 
must be dealt with by the State if it is to preserve 
harmony and peace and at the same time furnish 
equal education to both groups.

In addition to the Constitutional and Legislative 
findings of the necessity for the separation of the 
races in order to preserve the peace, there is an­
other ground of necessity for their separation not 
adequately stressed in the material heretofore set 
out. In the maintenance of the public schools, the 
State needs the support of all its people, both white 
and Negro. But as stated by Dean Benjamin Pit- 
tinger, if the power to separate the students were 
terminated,

“ . . . it would be as a bonzana to the pri­
vate white schools of the State, and it would 
mean the migration out of the schools and the

109 The point is illustrated in the case arising on the mixed 
campus of Ohio State University where the Home Eco­
nomics Department maintained a house in which the stu­
dents lived. In it they learned some of the many things 
necessary in the operation of a home. The college officials 
declined to register a Negro for that course and offered her 
an equivalent course. The highest court of that Northern 
State sustained the University’s position. State ex rel- 
W eaver v. Ohio S tate University, cited and discussed p. 
30, supra.



- 9 5 -

turning away from the public schools of the in­
fluence and support of a large number of chil­
dren and of the parents of those children . . . 
who are the largest contributors to the cause 
of public education, and whose financial sup­
port is necessary for the continued progress of 
public education.”110

It has been the policy of Texas to educate as many 
of its youth as possible in the public schools. The 
system, with the separation of the races, has grown 
and flourished with all classes of persons attending. 
Should the State be required to mix the public 
schools, there is no question but that a very large] 
group of students would transfer, or be moved by 
their parents, to private schools with a resultant de­
terioration of the public schools. And among those 
white students in the low income group who could 
not afford private schooling, are many who are most 
likely to give physical expression to their racial 
feelings. The need for the exercise of police power

110 R. 325-326. The fact of separation of the races has 
been a potent influence in encouraging attendance and sup­
port of the public schools in the South and it has contrib­
uted materially to their development and maintenance. 
Historically, the Peabody Foundation, a philanthropic or­
ganization of Massachusetts which contributed to the estab­
lishment of public schools in the South during the Recon­
struction period, urged Congress to defeat the Civil Rights 
Bill of 1875 in so far as it provided for mixed schools. It 
was stated by Trustees of the Fund that mixed schools would 
‘be most pernicious to the interests of education in the com­
munities to be affected by it, and that the colored population 
will suffer the greater share of this disastrous influence.” 
Proceedings of the Trustees of the Peabody Educational 
Fund, Oct., 1874 (1875), p. 403; Bond, The Education of 
the Negro in the American Social Order (1934), pp. 53-57; 
Boyd, Some Phases of Educational History in the (South 
Since 1865, Studies in Southern History (1914), p. 262.



— 96—

would continue to exist and the necessity for sep­
arate schools would become infinitely more apparent

The above says in a plainer language a part of 
what is meant by many of the authorities and per­
sons whose guarded and conservative conclusions 
have been set out heretofore as to the necessity for 
the separation of the races.

To summarize, there is ample evidence today to 
support the reasonableness of the furnishing of equal 
facilities to white and Negro students in separate 
schools. After much study for the United States 
Government, Dr. Ambrose Caliver concluded that 
“the m ores  of racial relationships are such as to rule 
out, for the present at least, any possibility of ad­
mitting white persons and Negroes to the same insti­
tutions.” He found that a very large group of 
Northern Negroes came South to attend separate 
colleges, suggesting that the Negro does not secure 
as well-rounded a college life at a mixed college, and 
that the separate college offers him positive advan­
tages ; that there is a more normal social life for the 
Negro in a separate college; that there is a greater 
opportunity for full participation and for the devel­
opment of leadership; that the Negro is inwardly 
more “secure” at a college of his own people.

Then there are the recommendations of the minor­
ity of those highly respected Americans who were 
appointed by the President of the United States to 
serve on his Committees on Higher Education and 
Civil Rights which believed it to the best interest of 
both races and their education, that the races con­
tinue, at least for the present, to be educated in sep­
arate schools. The views of these outstanding cit-



— 97—

izens may not lightly be regarded as unreasonable. 
The President has not recommended the action of 
the majority of the Committee advocating mixed 
schools.

Closer to the situs of this case, the Texas Bi-Racial 
Committee, composed of outstanding white and Ne­
gro educators, concluded that the admission of Ne­
groes to existing State universities for whites “is not 
acceptable as a solution of the problem.” Its recom­
mendation for the establishment of a new State uni­
versity for Negroes was followed by the Legislature. 
The Texas Poll taken before that Legislature met 
found that “most Negroes agreed with the over­
whelming sentiment of the white population in Texas 
that the Legislature should provide colored students 
with a first-class university of their own.”

That the separation of persons of the Negro and 
white races in Texas is not based on racial hatred 
and antagonism is shown by the fact that churches, 
at least of the South, have separate congregations 
for white and Negro members, and operate church 
schools and colleges which are attended on a separate 
basis.

Dr. Charles William Eliot, President of Harvard 
for forty years, concluded after a tour of the South 
that “if in any Northern state the proportion of Ne­
groes should become large, I should approve of sep­
arate schools for Negro children.”

The Congress and the Legislatures of 17 states 
consider it desirable and necessary to provide sep­
arate schools. The legislative acts are based not only 
on the belief that it is the best way to provide educa­
tion for both races, and the knowledge that separate



- 9 8 -

schools are necessary to keep public support for the 
public schools, but upon the necessity to maintain 
the public peace, harmony, and welfare. In addition 
to the material herein set out, the am icus brief of the 
Southern States ably develops the necessity for the 
exercise of the police power. The 1950 act of the 
Texas Legislature conclusively shows that it believes 
and finds that the necessity still exists.

The matter of the reasonableness of the classifi­
cation has been considered and upheld recently by 
Federal judges and by a Federal jury. The members 
of this Court including many of its most outstanding 
jurists, in considering and deciding the cases set out 
in Point I, considered the classification to be reason­
able.

It is respectfully submitted that there is ample 
evidence to sustain the reasonableness of the classi­
fication in question and that the prior decisions of 
this Court holding the classification to be reasonable 
should be followed.

C. If the Court Goes Behind Its Own Decisions and 
the Constitution and Statutes of Texas on the 
Question of Reasonableness, and If It Decides 
That It Has Not Sufficient Material From the 
Record, the Briefs, and Its Judicial Knowledge 
to Find Any Reasonableness in the Classifica­
tion Made by Texas, the Southern States, and 
the Congress, Then, and Only in That Event, 
Respondents Are Entitled on a New Trial to 
Fully Develop That Proposition.

As heretofore stated, the trial court was of the 
opinion, based on the decisions of this Court, that the



99—

sole question to be determined was whether the facili­
ties offered Petitioner were substantially equal to 
those offered white students similarly situated .

That Court thus refused to go behind the pro­
visions of the Texas Constitution and statutes on the 
question of the reasonableness of, or necessity for, 
those provisions. He excluded much of Petitioner’s 
proffered testimony as to what happened at other 
places and at different times. His inquiry was limit­
ed to the particular facts of this case.

Respondents, also believing that the decisions of 
this Court were correct and were controlling, did not 
attempt to put on a complete case in defense of the 
Texas Constitutional provisions and statutes. Those 
provisions, with the decisions of this Court, were be­
lieved to be the law of the case; and it was tried ac­
cordingly.

If, however, this Court determines not to follow 
its former decisions or feels the necessity of an in­
dependent evaluation of the question of the reason­
ableness of the classification, it is believed and sub­
mitted that the matter herein present is ample to 
support the provisions of the Texas Constitution and 
Statutes which are involved.

But if, and only if, the Court here decides not to 
follow its former decisions, and if the Court deter­
mines that the classification must be struck down un­
less more is shown the Court, then the State is en­
titled to a new trial in which to fully develop the 
proposition.

Respondents do not wish to be misunderstood. 
While they confidently expect that this Court will 
follow its previous decisions, the principle in ques-



— 100

tion is too important to the State of Texas for any 
contingency or possibility, however remote, to be 
overlooked. It is only against the remote possibility 
that this Court may decline to follow its former de­
cisions and be of the opinion that the matter here 
presented fails to show any reasonableness whatso­
ever that this point is preserved.

Fourth Point

The fact question of whether Petitioner was of­
fered equal facilities is not properly before this 
Court because Petitioner did not present it to the 
Texas appellate courts for review. But assuming 
the issue to be properly before the Court, there is 
ample evidence to support the trial court’s findings 
of fact and judgment.

1. The Fact Question As to the Equality of the Two Law 
Schools is Not Properly Before This Court.

It is elementary that whether two things are sub­
stantially equal to each other is a question of fact,

The trial court found as a fact, after hearing con­
siderable evidence from all parties, that:

“. . . this court is of the opinion and finds 
from the evidence that . . . the Respondents 
herein . . . have established the School of 
Law of the Texas State University for Negroes 
in Austin, Texas, with substantially equal facil­
ities and with the same entrance, classroom 
study, and graduation requirements, and the 
same courses and the same instructors as the 
School of Law of The University of Texas; that



101—

such new law school offered to Relator privi­
leges, advantages, and opportunities for the 
study of law substantially equivalent to those 
offered by the State to white students at The 
University of Texas. . . . ” (R. 440.)

The Court further found that:

“From his own testimony, Relator would not 
register in a separate law school no matter how 
equal it might be and not even if the separate 
school affords him identical advantages. . . .” 
(R. 440.)

No exception was taken to such finding. In view 
of Petitioner’s statement (R. 188) that he would not 
attend the separate school even if it were absolutely 
equivalent, it would appear that he is not in a posi­
tion to argue about the equality of the facilities. He 
stated himself that as to him it made no difference. 
(R. 188.)

The same position was taken on appeal. The find­
ings of fact of a court sitting without a jury, under 
the laws of Texas, have the same force and are en­
titled to the same weight as the verdict of a jury.111 
These findings will not be disturbed by a Texas ap­
pellate court where there as evidence to support 
them, even though the evidence may be conflicting.112

The Texas Courts of Civil Appeals have the power 
to reverse and remand where the evidence so pre-

111 Bird v. Pace, 26 Tex. 487 (1863) ; Jordan v. Brophy, 41 
Tex, 283 (1874) ; Rich v. Ferguson, 45 Tex. 396 (1867) ; 
Baldridge v. Scott, 48 Tex. 178 (1877).

112 Gray v. Luther, 195 S. W. (2d) 434 (Tex. Civ. App. 
1946, error refused) ; Highsmitk v. Tyler State B. & T. Co., 
194 S. W. (2d) 142 (Tex. Civ. App. 1946, error refused).



— 102—

ponderates against the judgment that it should be 
set aside. Where there is no evidence to support 
the findings and judgment, the Courts of Civil Ap­
peals and the Texas Supreme Court are empowered 
to reverse the case and render the proper judg­
ment. 113

Under Texas,procedure it is necessary to invoke 
the jurisdiction of the appellate courts in this re­
gard.114 Petitioner did not do so.115 As stated by the 
Court of Civil Appeals:

“Our jurisdiction in the latter regard was not 
invoked in this case.” (R. 461.)

Similarly, an examination of Petitioner’s assign­
ments of error on Motion for Rehearing in the Court 
of Civil Appeals will show that again he presented 
no assignment of error with regard to the fact find­
ing of substantial equality. (R. 461-464.)

The Texas Supreme Court is empowered to re­
verse and render a case where there is no evidence

118 Patrick v. Smith, 90 Tex. 267 (1896); Eastham v. 
Hunter, 98 Tex. 560 (1905) ; Sonora Realty Co. v. Fabens 
Townsite & Improvement Co., 13 S. W. (2d) 965 (Tex. Civ. 
App. 1929).

lli:Wisdom v. Smith, 146 Tex. 420 (1948) ; DeWitt v. 
Brooks, 143 Tex. 122 (1944) ; Rule 476, Tex. Rule Civ. Pro., 
infra, note 117.

115 See Petitioner’s points of error in the Court of Civil 
Appeals, Appendix, to Respondents’ Original Brief, p. 105. 
The only assignment even approaching a challenge of the 
sufficiency of the evidence to support the fact finding was 
his 4th point which complained of the holding that “the 
proposal to establish a racially segregated law school af­
forded the equality required by the equal protection clause 
. . .” That assignment says that even if the two schools are 
identical, the fact that they are separate violates the 14th 
Amendment. It does not raise the question of the equality 
of the two “separate” schools.



— 103—

to support the findings of fact and judgment.116 But 
this point must first be made in the Motion for Re­
hearing in the Court of Civil Appeals.117 There is no 
assignment of error in Petitioner’s Application for 
Writ of Error to the Texas Supreme Court on the 
want of evidence to support the fact findings.118 So 
in this case, the question of evidence to support the 
finding of fact as to the equality of the schools was 
not before the Texas Supreme Court.119 It had no 
jurisdiction to consider this point.

It follows that the refusal of the application for 
writ of error by the Supreme Court of Texas was 
based solely on the law point as to the power of the 
State to provide separate facilities. Its jurisdic­
tion on the question of whether there was evidence 
to support the fact finding of equality of facilities of 
the two separate schools was not invoked. Its re­
fusal of the application for writ of error, therefore, 
could not be construed as a holding on whether there

116 Schelb v. Sparenberg, 133 Tex. 17 (1939) ; Sovereign 
Camp W.O.W. v. Patton, 117 Tex. 1, (1927).

117 Moore v. Dilworth, 142 Tex. 538 (1944); Railroad 
Comm. v. Mackhank Pet. Co,, 144 Tex. 393 (1945). Rule 
476 (Tex. Civ. Pro.) provides:

“Trials in the Supreme Court shall be only upon 
the questions . . . raised by the assignments of error in 
the application for writ of error.”

118 Petitioner’s Assignments of Error in the Texas Su­
preme Court are set out in the Appendix to Respondents’ 
Original Brief page 106.
• U9, ^ is  fflct was pointed out by Respondents in their reply 
m ™ê  Texas Supreme Court. Their second point read in 
part, “No assignment of error was made as to such findings 
in Petitioner’s Motion for Rehearing in the Court of Civil 
Appeals  ̂ There is no assignment in this Court that there 
is no evidence to support such findings.” Petitioner did 
not even reply to such point.



— 104—

was evidence to support that determinative finding 
of fact; the court had no jurisdiction as to that point.

With regard to cases involving disputed fact is­
sues, this Court has announced that it accords great 
respect to the conclusions of the State judiciary. It 
has said:

“That respect leads us to accept the conclusion 
of the trier of disputed issues 'unless it is so 
lacking in support in the evidence that to give 
it etfect would work that fundamental unfair­
ness which is at war with . . . equal protec­
tion.”120

v a n r | '

At the same time, the Court has announced that in 
cases arising under the Fourteenth Amendment 
the Court feels that its duty “calls for our exami­
nation of the evidence to determine for ourselves 
whether a federal constitutional right has been de­
nied.”121

It is submitted that the Court is under no duty to 
make such an examination where Petitioner him­
self has not raised the point for the appellate courts 
of the State to pass upon.

This Court has stated many times that it will not 
review matters not presented to the State Courts. 
The statement by Mr. Chief Justice Stone in McGold- 
rick  v. C om pagnie G enerate Transatlantique, 309 U. 
S. 430 (1940), is particularly applicable here:

“But it is also the settled practice of this 
Court, in the exercise of its appellate jurisdic­
tion, that it is only in exceptional cases, and

120 A,kins v. Texas, 325 U. S. 398, 402, (1 9 4 5 ).
121 Ibid., note  120.



— 105—

then only in cases coming from the federal 
courts, that it considers questions urged by a 
petitioner or appellant not pressed or passed 
upon in the courts below. . . .  In cases com­
ing here from state courts in which a state stat­
ute is assailed as unconstitutional, there are 
reasons of 'peculiar force which should lead us 
to refrain from deciding questions not presented 
or decided in the highest court of the state 
whose judicial action we are called upon to re­
view. Apart from the reluctance with which 
every court should proceed to set aside legisla­
tion as unconstitutional on grounds not prop­
erly presented, due regard for the appropriate 
relationship of this Court to state courts re­
quires us to decline to consider and decide ques­
tions affecting the validity of state statutes not 
urged or considered there. It is for these rea­
sons that this Court, where the constitutionality 
of a statute has been upheld in the state court, 
consistently refuses to consider any grounds of 
attack not raised or decided in that court.

“. ; . In the exercise of our appeallate juris­
diction to review the action of state courts we 
should hold ourselves free to set aside or revise 
their determinations only so far as they are er­
roneous and error is not to be predicated upon 
their failure to decide questions not presented. 
Similarly their erroneous judgments of uncon­
stitutionality should not be affirmed here on 
constitutional grounds which suitors have failed 
to urge before them, or which, in the course of 
proceedings there, have been abandoned.”

Those “reasons of peculiar force” are particularly 
applicable here since Petitioner attacks the consti­
tutional validity of the Texas Constitution as well



— 106—

as its statutes. This Court has been unwavering in 
the application of the doctrine that it will not con­
sider points not presented to the highest State 
court.122

Since the fact question of substantial equality was 
decided by the trial court contrary to Petitioner’s 
contentions, and he failed to present his point to the 
State appellate courts, he is not now in a position 
to ask this Court to review that matter.

It is therefore respectfully submitted that this 
Court should accept the fact findings of the State 
court that the education offered Petitioner in this 
case was substantially equal to that offered white 
students similarly situated and that the decision in 
this case should be affirmed.

Petitioner asserts in his Point IV that this Court 
should strike down its previous decisions because 
separate schools can never be equal. In the first 
place, that assumes the answer to the question as to 
whether or not Petitioner was offered equal facili­
ties in this case. The trial court found that he was. 
And before he can be heard to say that no facilities 
anywhere can ever be equal, it was incumbent on him 
to have the trial court’s findings in this case set aside 
if he could. That he did not do in the Appellate 
Courts of Texas.

122 W ilson  v. Cook, 327 U. S. 474 (19 46 ) ; H unter Co., Inc., 
v. M cH u gh , 320 U. S. 222 (1 9 4 3 ) ; Clark v. Williard, 294 
U. S. 211 (19 35 ) ; N e w  Y ork  v . K lien ert, 268 U. S. 646 
(19 25 ) ; Chicago, B . & Q. R . Co. v . Railroad. Commission, 
237 U. S. 220 (19 15 ) ; W illough by v . Chicago, 235 U. S. 
45 (19 14 ) ; R obinson  & Co. v . Belt, 187 U. S. 41 (1902); 
Bolin v . N ebraska, 176 U. S. 83 (1 9 0 0 ).



— 107—

By the assertion that separate schools or separate 
institutions of any kind, can never be equal, Peti­
tioner expects this Court to judicially know all the 
facts as to all the places where separate facilities are 
now being offered to any groups, or which may here­
after be offered. Respondents say that the assertion 
is not only unfounded, but that there is no precedent 
for the use of judicial notice on such a scale on dis­
puted facts. Discussing the exercise of judicial 
knowledge this Court said in B row n v. P iper, “Every 
reasonable doubt upon the subject should be resolved 
promptly in the negative.” 91 U. S. 37, 43 (1875).

Furthermore the assertion that no separate Negro 
college with equal facilities could be equal to one for 
white students is to brand the Negro race with an 
inferiority to which Respondents cannot subscribe.

2. Assuming the Fact Question of the Equality of the 
Schools is Properly Before the Court for Determina­
tion, There is Substantial Evidence to Support the 
Fact Findings of the State’s Trial Court.

An examination of the Record will show that there 
is substantial evidence to support the trial court’s 
fact finding. As set out in the discussion by the Tex­
as Court of Civil Appeals (R. 449), it is not required 
that the accomodations be identical. The test is 
whether they are substantially equal.123

™  McCabe v . A . T. & S. F . R y ., 235 U. S. 1 51 : “ . . . i f  
facilities are provided, substantial equality o f  treatm ent o f  
persons traveling  under like cond itions cannot be re fu sed .”  
Hall v. DeCuir, 95 U .S. 4 8 5 : “ Substantial equality o r  r ig h t 
is the law o f  the State and the U nited  S ta tes ; but equality 
does not mean identity. . . .”  M issouri ex rel. Gaines v . 
Canada, 305 _U.S. 3 3 7 : “ . . . the state is bound to  fu rn ish  
him within its borders fa c ilit ie s  f o r  legal education  sub­
stantially equal to  those w h ich  the state a fforded  fo r  persons 
oi the w hite race. . .



— 108-

The point may be illustrated by assuming a situ­
ation applicable only to white students. In most 
large cities in the South, there are several white pri­
mary schools. They generally differ in age, in beauty, 
in amount of playground available (depending on 
how far in town they are), et cetera. Some have more 
of this and less of that. Of course the white students 
are entitled to “equal protection.” Yet parents can­
not successfully demand the admission of their chil­
dren to any particular school so long as the school to 
which their children are assigned is “substantially 
equal.”

The principle is applicable here. The operation of 
the public schools, including publicly-owned colleges, 
requires the test to be “substantial equality.” Iden­
tical facilities and physical plants are not required 
in assigning white students to schools for white 
children. Nor should it be required that white schools 
should be identical with Negro schools. All are 
schools furnished at the State’s expense; and so long 
as each student is offered substantially equal facili­
ties, he is afforded the equal protection of the laws.

As set out above, whether substantially equal facil­
ities are offered students in different schools is a 
question of fact. Assuming the question to be prop­
erly before the Court, there is substantial evidence 
to support the State court’s finding of fact. The fol­
lowing evidence in that regard was adduced in this 
case:

Entrance, Examination, Graduation, and Similar 
Requirements

The requirements for admission and fees, and reg­
ulations relating to the classification of students,



— 109

classwork, examinations, grades and credits, stand­
ards of work required, and degrees awarded w ere ex ­
actly the same as those published in the latest cat­
alogue of The University of Texas and used at such 
institution. (Ex. 7, R. 85, 371-372; 82, 114, 160.)

The Faculty

The instructors at the School of Law of the Texas 
State University for Negroes at the time of trial 
were the same professors  who had taught or were 
teaching the same courses at The University of 
Texas Law School. (R. 82-84,113-114, 369-371, 83.) 
They were the same instructors Petitioner would 
have had if he had been enrolled in The University 
of Texas. (R. 113-114.) The instructions from the 
Board of Regents were to use all of the faculty of 
the University Law School, so far as necessary, in 
order to maintain a full curriculum at the Negro 
Law School until other full-time professors could be 
employed for the Negro Law School. (R. 121.) The 
budget provided for four professors at $6,000 per 
year, the same pay base for professors at The Uni­
versity of Texas. (R. 70.) Each of the instructors 
devoted all of his time to teaching; each a full-time 
professor. (R. 59-60.) With the small enrollment 
at the Negro Law School, the instructors would have 
been more available to the students for consulta­
tion than they would have been to students at The 
University of Texas with its large classes of 150 to 
175 students. (R. 121-122.) The Dean and Regis­
trar of the two law schools were respectively the 
same persons. (R. 372, 85.)



— 110

Curriculum

The curriculum at the Negro Law School and at 
The University of Texas [was exactly the same. (R.
81, 82.) The courses offered, beginning students at 
the Negro Law School were identical with those of­
fered beginning students at the University: Con­
tracts, Torts, and Legal Bibliography. (R. 84.) These 
courses, with the same professors, are set out in 
Respondent’s Exhibit 7. (R. 85, 371-372.)

Classroom

The classroom requirements were identical. (R.
82. ) With much smaller classes, the Negro Law 
School would have provided the student with more 
opportunity to participate personally in classroom 
recitations and discussions. (R. 306.) In an aver­
age law class at The University of Texas Law School 
a student would be called upon to recite only an aver­
age of iy2 times a semester. (R. 305.) In a smaller 
class the students would receive better experience 
and education; they would be called on more fre­
quently, and would be more “on their toes.” (R. 
306.) The students would come to class better pre­
pared because their chances of being called upon 
would be much greater; there would be a greater 
pressure to keep up their daily work. (R. 315.) 
Dean McCormick testified that “in the Negro Law 
School he [Sweatt] would have gotten a good deal 
more personal attention from the faculty than he 
would have had he been in the large entering class 
in The University of Texas.” (R. 117.)



- 1 1 1 -

Library

At the time of trial, there were on hand in the 
Negro Law School books customarily used by the 
first-year class of the University, and other books 
which Miss Helen Hargrave, Librarian of the Uni­
versity Law School, thought would be useful. (R. 
131.) There were about 200 of these books. (R. 
21.) There were also available for transfer to the 
Negro Law School between 500 and 600 books from 
the University (R. 147), plus gifts of between 900 
and 950 books. (R. 147.) In addition, the entire 
library of the Supreme Court of Texas was specifi­
cally made available to the Negro Law School by the 
Legislature. (R. 45.) The Supreme Court Library 
is located in the State Capitol Building on the sec­
ond floor. (R. 6.) The Capitol grounds are some 
20 feet from the Negro Law School, and the en­
trance is only about 300 feet from that School. (R. 
37, 80.)

The Supreme Court Library contains approxi­
mately 42,000 volumes (R. 133), which number is 
far in excess of the 7,500-book minimum require­
ment of the American Bar Association. (R. 6.) Ex­
cluding duplicates, The University of Texas Law 
Library contains 30,000 to 35,000 books. Counting 
duplicates, it contains around 65,000. (R. 133.) 
These books serve 850 law students of The Univer­
sity of Texas. (R. 147.)

In some respects the Supreme Court Library is 
stronger than that of the University. Being a Gov­
ernmental Depository, the Supreme Court Library 
automatically receives many reports, such as those



112

of administrative bodies. It is the strongest library 
in the South on State Session Laws. It contains 
Attorney General’s Opinions, Tax Board Opinions, 
Workmen’s Compensation Reports, and other items 
not carried by the University. (R. 132, 133.) The 
Supreme Court Library is more spacious for a stu­
dent body of ten students than are the facilities at 
The University of Texas Law School Library, which 
are exceedingly crowded. (R. 79.) There is no 
more confusion, and, in most instances, less confu­
sion, in the Supreme Court Library than at the Law 
Library of the University because of the large num­
ber of persons using the latter. (R. 146.)

On the other hand, the Supreme Court Library 
does not have as many textbooks, legal periodicals, 
or English reports as the University Law Library. 
(R. 131-132.) The Court’s Library contains the Har­
vard, Columbia, Yale, and Texas Law Reviews, and 
the American Bar Association Journal. (R. 132.) 
It has the English Reports up to 1932.124 The Law 
Library of The University of Texas and that of the 
Supreme Court are substantially equal except for 
the texts, legal periodicals, and English Reports. 
(R. 132-134.)

However, all of such texts, periodicals, and Eng­
lish Reports were readily available to the Negro Law 
School on a loan basis from the Law Library of The 
University of Texas. (R. 63-64.)

In addition, a complete law library was being Pr0‘ 
cured. Of such number 1,281 books were immedi-

124 T he evidence show ed that first-year law  students rarelj 
used the E nglish  R eports  (R . 1 4 7 -1 49 ).



__113—

ately available (R. 158), and 8,727 had already been 
requisitioned. (R. 155.) Orders had been placed 
for 5,702 of the books (R. 156), all deliverable with­
in ten to sixty days. (R. 156.) Wherever new books 
were available, they were ordered; second-hand 
books were only ordered where new ones were not 
available. (R. 156.) The library requisitioned in­
cluded 20 Law Reviews, Indices of Legal Periodicals, 
Citations, Digests, Restatements, textbooks, stat­
utes, the complete West Publishing Company Re­
porter System, etc. (Respondents’ Original Exhibit 
8, R. 130.) The undisputed evidence is that the books 
ordered were sufficient to meet the requirements of 
the American Association of Law Schools. (R. 115.)

The Physical Facilities

Whereas The University of Texas Law School has 
three classrooms for 850 students,125 the Negro Law 
School had two classrooms, a reading room, toilet 
facilities, and an entrance hall (R. 77; Respondents’ 
Original Exhibit 4; R. 67), for a much smaller stu­
dent body. The two law schools possessed approxi­
mately the same facilities for light and ventilation 
(R. 77, 88), though most law schools, including The 
University of Texas, need artificial light in the day-

125 The Law  School bu ild ing at The U n iversity  o f  Texas 
was built in 1902 f o r  400 students (R . 21 ) ; it now  has 850 
students (R . 7 9 ). The T exas B a r  A ssocia tion  has been 
trying fo r  years to get the bu ild in g  torn  dow n and an ade­
quate one built (R . 2 1 ) .



— 114-

time. (R. 89.) The Negro Law School, assuming 
at that time a class of ten students, had a greater 
floor space per student.126

The location of the Negro Law School at the time 
of the suit was particularly good. It was directly 
north of the State Capitol, separated only by a 20- 
foot street. (R. 37.) It was within 100 yards of the 
Supreme Court of Texas, the Court of Civil Appeals, 
the Attorney General’s Office, and the Legislature, 
(R. 65.) It was between the business district of Aus­
tin and The University of Texas, eight blocks south 
of the University, and eight blocks nearer the busi­
ness district. (R. 37.)

The building housing the Negro Law School was 
a three-story building of brick construction. (R. 
164-170.) The first floor (not a basement) was occu­
pied by the School at the time of trial (R. 41), but 
the upper two stories of the building were available 
as needed. (R. 47.) Before March 10, 1947, the 
premises were cleaned and painted. (R. 39.) The 
building had ample space to house the 10,000 volume 
library and leave sufficient space for classrooms and 
reading rooms. (R. 166.)127

126 The N egro  school, first floor, had 1060 square feet, ol 
106 square fe e t  p er student. The U n iversity  o f  Texas Law 
S chool has 46,518 square fe e t  f o r  886 students, or  53 square 
fe e t  p er  student. A n d  th is did n ot take into account the 
upper tw o  stories o f  the N egro  School w h ich  w ere available 
w hen  needed (R . 4 7 ) .  T h e floor plan show s a classroom
12 ' x  1 2 '8 " ; a classroom  16 ' 6" x  1 1 '6", a reading room and
office  1 9 '10 " x  15 '7", and en trance hall and toilet facil­
ities. R espon dent’ s O rig inal E x h ib it  4.

127 T here are certa in  m in or featu res  o f  a law  school great­
ly  em phasized by  P etition er. A s  th ey  w ould  have been ap­
p licable  to  S w eatt h im self, th e  evidence show ed:

1. T he L a w  R eview . The T exas L a w  R eview  is not an 
officia l fu n ction  o f  the State o f  T exas o r  the University,



— 115

With reference to the membership requirements 
of the Association of American Law Schools,128 it was 
shown that the Negro Law School, at the time of 
this trial, met the great majority of the nine require­
ments :

(1) It was a school not operated as a commercial 
enterprise, and the compensation of none of the of­
ficers or members of its teaching staff was depend­
ent on the number of students or the fees received. 
(R. 114)

(2) It satisfied the entrance requirements; i. e., 
pre-legal training, etc. (R. 114.)
(Ftn. 127 Cont’d ) It  is a separate legal en tity , a p rivate  
corporation (R . 3 0 6 ). It  w as fou n d ed  b y  the law yers o f  
Texas and financed b y  th eir con tribu tions (R . 106, 1 1 2 ). 
Considerably m ore  than  h a lf o f  the a rticles (as  d istin ­
guished from  case notes) a re  w ritten  b y  persons w h o are 
not U niversity students (R . 306, 3 0 7 ). There is no ru le 
which would perm it the con sideration  o r  pub lication  o f  an  
article w ritten b y  a  N egro  (R . 3 0 7 ). N ot all a ccred ited  
schools have law  re v ie w s ; f o r  exam ple, the B a y lo r  L aw  
School (R . 3 0 7 ). (A t  the tim e o f  tr ia l.)  N either Sw eatt 
nor any other first-year law  student w ould  be eligible to  
write fo r  the law  rev iew  (R . 105, 3 15 -3 1 6 ).

2. Scholarships: A ll the scholarsh ips offered  a t T he 
University o f Texas L aw  School a re  con tribu ted  fro m  p ri­
vate sources; they do not com e fro m  the State (R . 103, 1 1 2 ).

3. The Order o f  the C oif  is  a p rivate  and n ot a public 
organization (R . 104, 1 1 2 ). F irs t-yea r students a re  not 
entitled to  adm ission. Students are e lig ib le  on ly  on g rad ­
uation (R . 1 12 ).

4. The Legal A id  C lin ic: F irs t-yea r students are not
eligible to assist therein . P ractica lly  all the w ork  is done 
by third-year students (R . 105, 1 1 2 ).

5. M oot C ou rt : N o  first-year students are entitled  o r  re ­
quired to participate (R . 112, 1 0 2 ). A n y  one o f  the class­
rooms at the N egro L aw  School could be used f o r  that p u r­
pose (R. 102 ).

i28 These requirem ent are set out in  R ela tor ’s  E x h ib it  1 
(R. 375-384; R . 5 ) .



■116—

(3) The school was a “full-time law school.” The 
school work was arranged so that substantially the 
full working time of the student was required at the 
school. (R. 114-115.)

(4) The conferring of its degrees was condi­
tioned upon the attainment of a grade of scholarship 
attained by examinations. (R. 115.)

(5) No special students were admitted. In this, 
the School’s requirement was stronger than that of 
the Association which permits such students under 
certain considerations. (R. 115.)

(6) The 10,000 volume library ordered for the 
School was sufficient to meet the library require­
ments. (R. 115.) The selection of the books was 
such as to conform with the Association’s require­
ments. In addition, the Supreme Court Library of 
40,000 volumes was available, plus loan privileges 
from the Law Library of The University of Texas. 
(R. 115; 63, 64.)

(7) The seventh requirement is that the “faculty 
shall consist of at least four full-time instructors 
who devote substantially all of their time to the work 
of the school.” The professors in this case were 
full-time professors in the sense that all of their time 
was devoted to teaching. However, all of their teacfl- 
ing was not done at the Negro school; they were also 
teaching at Texas University. (R. 116,117.)

(8) Provision was made for keeping a compete 
and readily accessible individual record of each stu­
dent. (R. 115.)



■117—

(9) The requirement reads: “It shall be a school 
which possesses reasonably adequate facilities and 
which is conducted in accordance with those stand­
ards and practices generally recognized by member 
schools as essential to the maintenance of a sound 
educational policy.” Dean Charles T. McCormick, 
President of the American Association of Law 
Schools in 1942 (R. 76), testified that in his opinion 
the Negro Law School met this requirement. (R. 
116.)

The testimony was that a two-year period is gen­
erally required before any law school may be ad­
mitted to membership in the Association of Amer­
ican Law Schools. Dean McCormick testified that 
he knew of no reason why the Negro Law School 
could not comply with all of those standards within 
that two-year period— before any entering student 
(including Petitioner) could graduate from the 
school. (R. 118.)

Regarding the Law School at the time of trial, 
Mr. D. A. Simmons, President of the American 
Judicature Society 1940-1942, and President of the 
American Bar Association 1944-45 testified:

“In my opinion, the facilities, the course of 
study, with the same professors, would afford 
an opportunity for a legal education equal or 
substantially equal to that given the students 
at The University of Texas Law School.” (R. 8.)

Dean Charles T. McCormick, President of the As­
sociation of American Law Schools, 1942 (R. 76), 
testified that facilities at the Law School for Negro 
citizens furnished to Negro citizens an equal op-



— 118—

portunity for study in law and procedure (R. 85); 
that considering the respective use by the respective 
number of students, the physical facilities offered 
by the Negro Law School were substantially equal 
to those offered at The University of Texas Law 
School. (R. 78, 79.) He stated that:

“I would say . . . the Negro student has 
at least equal and probably superior facilities 
for the study of law.” (R. 108.)

Mr. D. K. Woodward, Jr., Chairman of the Board 
of Regents of The University of Texas, testified:

“What we set up there was a plant fully ade­
quate to give the very best of legal instruction 
for the only man of the Negro race who had 
ever applied for instruction in law at the Uni­
versity in about 63 years of the life of the 
School.” (R. 48.)

“I am talking as a man familiar with what 
it takes to provide a thorough training in law 
in the state of Texas, and I stated the facts 
within my own personal knowledge, that the fa­
cilities which the Board of Regents of the Uni­
versity set up in accordance with Senate Bill 
140 are such as to provide the Relator in this 
case the opportunity for the study of law un­
surpassed any time elsewhere in the State of 
Texas, and fully equal to the opportunity and 
instruction we are offering at the University 
any day.” (R. 42,43.)

It is submitted that these facts constitute suf­
ficient evidence to support the State court’s finding of



fact that the education offered Petitioner was sub­
stantially equal to that offered white students 
similarly situated.

Addendum

The facts regarding the School of Law of Texas 
State University have materially changed since the 
trial of this case.129 They have changed to such an 
extent that even assuming the fact question of the 
equality of the two schools is before the Court, it 
might well consider that such issue is moot. In this 
connection it will be remembered that Petitioner tes­
tified that no matter how equal the separate Law 
School might be, he would not attend it. (R. 188.)

These facts are set out to show the good faith of 
Respondents and the State of Texas, and to refute 
the statements and insinuations of Petitioner and 
his amici curiae that the State is offering a “base­
ment” type of legal education to its Negro students.130 
They are also set out because this is a mandamus ac-

. 129 This Court may consider any change in facts superven­
ing since the judgment was entered. G ulf C. & S. F . R y . v. 
Dennis, 224 U. S. 503 (1912) ; W a tts, W a tts & Co. v . Unions 
Austnaca, 248 U. S. 9 (1918) ; M issouri ex rel. W abash R y . 
v. Public Service Com m ., 273 U. S. 126 (1927) ; Patterson  
v Alabama, 294 U. S. 600 (1935) ; Villa v. Van Schaick, 299 
U.S. 152 (1936).

30 The good faith of the State is further evidenced by the 
reaching of a Negro at the Medical School of The University 
° , . xf s Galveston. Since the State has no separate 
ledical school for Negroes, he is being taught there pur­

suant to a contract between The University of Texas and 
exas State University. The State is simply following the 

Gaines case.



•120—

tion in which equitable principles are applicable.131 In 
this case the Petitioner is seeking an order from this 
Court directing his admission to The University of 
Texas. As stated under Section C of Respondents’ 
Point III, Respondents confidently expect that this 
Court will follow its previous decisions; and even as­
suming the fact issue of the equality of the schools to 
be before the Court, that it will agree that there is 
substantial evidence to support the State Court’s fact 
findings. But, as stated, the case is too important 
to the State to leave unconsidered any contingency, 
however remote. Should the Court therefore dis­
agree with courts of Texas and with respondents on 
the issues regarding the facts in this case, these 
supervening facts should be before the Court to as­
sist it in arriving at its judgment as to the proper 
disposition to be made of the case.

Supervening Facts

1. Accreditation. The Law School of Texas 
State University has been granted provisional ap­
proval by the American Bar Association. The “pro­
vision” is that it continue to maintain its present 
high standards for a reasonable length of time. It 
has been found to meet the Standards of the Amer­
ican Bar Association.132

131 United States v. B ern , 289 U. S. 352 (1933) and cases 
therein cited.

132 “The Council has found your school not to be in M 
compliance with its standards but to exceed those standards 
in many respects. We have no doubt that your school will 
continue to comply . . . ” Letter of John G. Hervey, Ad­
visor of American Bar Association, Section on Legal BdU' 
cation and Admissions to the Bar, to the Dean of the T.S.U- 
Law School set out in the Appendix, p. 225. See also the 
announcement of approval. Appendix p. 224.



— 121—

The school, including of course its faculty, has also 
been found by the American Association of Law 
Schools to meet its standards.183 Its accreditation 
was delayed pending the outcome of this lawsuit and 
for that reason only. Petitioner, who brought this 
suit, cannot complain about that condition.

2. Library. The testimony on the trial of the 
case was that some 10,000 volumes of law books had 
been ordered (R. 155, 158.) As of the time of Re­
spondents’ reply brief on Petition for Certiorari, 
some 16,300 volumes (including those listed as or­
dered on the trial) were in its shelves.133 134 The latest 
official catalogue of that law school shows that over 
23,000 volumes are in its library. It is still growing.

3. Student Body. As of the time of the latest 
report of the State Auditor, there were 23  Negro stu­
dents in the law school.135 The school maintains a 
practice court, bar association, and legal aid clinic 
for its law students.136 137

Henry Doyle, who enrolled in the law school short­
ly after the trial of this case in May, 1947, has suc­
cessfully passed the Texas Bar Examinations and is 
licensed to practice law in all the State Courts of Tex­
as.13, The same opportunities were of course avail-

133 Appendix p. 227.
See the Report of the Auditor and the Report of the

events of that University to the Governor of Texas set out 
Briefg6S ^  anĉ  ^  Respondents’ Original

See Report of the Auditor to the Governor of Texas in
lseyPP®n(hx to Respondents’ Original Brief, p. 100.

Ralletin of Texas State University School of Law, 1949-50, pages 6, 7.
137 Appendix p. 227.



— 122—

able to Petitioner who could have had his license to 
practice by now. Others will become eligible to take 
those examinations in the near future. Over 2,000 
students are in other divisions on the campus of this 
university.138

4. Physical Facilities. The law school has moved 
into exclusive possession of an entire floor of one 
wing of a new two-million-dollar-building. The at­
tached pictures will show that the building is modern 
in design and that the equipment is first-class.139

138 Ibid, note 135, supra.
139 The pictures are of a portion of the exterior of the 

building in which the Law School is housed, p. one of pho­
tographs which follow; a classroom in the Law School, p, 
two of photographs; a law professor’s office, p. three of pho­
tographs ; and the hall between the law classroom and the 
law library, p. four of photographs.







(Page Three) A Law Professor’s Office.





- 1 2 3 -

Summary and Conclusion

The previous decisions of this Court have an­
nounced the law applicable to this case: that the 
States, which are not required by the Federal Con­
stitution to maintain any schools, may provide edu­
cation to white and Negro students in separate 
schools so long as equal education is offered to both 
groups. Attending a public school or university is 
a privilege extended by the State. It is not a righ t 
of a citizen of the United States. So long as the 
privileges extended to all groups are equal, no one 
is deprived of the equal protection of the laws.140

The principle was summarized by this Court in the 
Gong Lum  decision:

“The question here is whether a . . . citizen 
of the United States is denied equal protection 
of the laws when he is classed among the colored 
races and furnished facilities for education 
equal to that offered to all, whether white,

uo. Mr. Justice Clifford in the D eC uir case: “ . . . equality 
of rights does not involve the necessity of educating white 
and colored persons in the same school any more than it 
does that of educating children of both sexes in the same 
school, or that different grades of scholars must be kept 
m the same school; . . . any classification which pre- 
serves substantially equal school advantages is not pro- 

1 .J3'y ehher the State or Federal Constitution, nor
woum it contravene the provisions of either.”
all a Jv l ! ce Harlan in the Cumming case: “ . . . while 

P11 ?™at the benefits and burdens of public taxation 
anv silarec* by citizens without discrimination against 
Dennio ,-SS °? a,ccount °f their race, the education of the
bplnncri n +Ĉ ?i° s main âined by state taxation is a matter belonging to the respective States. . . .”



— 124-

brown, yellow or black. Were this a new ques­
tion, it would call for very full argument and 
consideration, but we think that it is the same 
question which has been many times decided to 
be within the constitutional power of the state 
legislature to settle without intervention of the 
federal courts under the Federal Constitution.”

This Court in the Gaines, case, following its former 
decisions, referred to the system of furnishing 
equal education in separate schools as “a method 
the validity of which has been sustained by our de­
cisions.”

Those opinions correctly interpret the meaning of 
the Fourteenth Amendment and the intention of the 
Congress which proposed it and of the Legislatures 
of the States which adopted it. The review herein 
set out clearly shows that the Amendment was not 
intended to require mixed schools. On the contrary, 
as unmistakable evidence of its interpretation of the 
amendment, the Congress which proposed the amend­
ment enacted legislation continuing its separate 
schools both during and after the adoption of the 
amendment. The State Legislatures likewise, with 
the exception of the very few states which preferred 
mixed schools of their own volition, continued to 
operate their separate schools.

Those decisions of this Court also properly re­
fused to strike down, as an unreasonable exercise of 
the State’s police power, the State Constitutions and 
Statutes providing for equal education of white and 
Negro students in separate schools. There is ample 
evidence today for the reasonableness of and neees-



■125—

sity for such separation.141 The Texas Legislature 
found that such a necessity existed as late as Feb­
ruary, 1950.142 Dr. Ambrose Caliver of the United 
States Office of Education concluded that in some of 
the States, the m ores of race relationships ruled out 
for the present at least the possibility of admitting 
white persons and Negroes to the same institutions; 
that there was much evidence that Negroes had a 
more normal social life and had a better chance to 
develop leadership at a separate college. Dean Pit- 
tenger pointed out that forced mixed schools would 
be a bonanza to the private schools of Texas, and 
would cause large withdrawals from the public 
schools; that the public schools need the continued 
support of all citizens; and that a great amount of 
that public support would be lost by a mixing of the 
races in the schools. The Texis Bi-racial Committee 
concluded that the admission of Negroes to existing 
state universities for white students was not accept­
able at this time for the solution of providing oppor­
tunity for graduate and professional work. The

141 It will be remembered that the question of the reason­
ableness of the classification was not tried out in this law- 

^cause the trial court, correctly we think, considered 
that this Court had settled the matter. If, and only if, the 
Court disagrees with its former decisions and feels that it 
has not sufficient material before it to sustain the classifi­
cation, then Respondents are entitled to a new trial to fully 
develop that proposition.
in the Legislature has accurately reflected the feel-

^exas People is shown by the Texas Poll surveys 
in -f' f an<̂  -^0- The 1947 poll showed that the great ma- 
L "  y favored a first-class university for the Negroes rather
pin/ 1 j - °f the races. Those feelings had notchanged m 1950.



- 1 2 6 -

maintenance by the churches in the South of sep­
arate schools and colleges demonstrates that the 
policy of separation is not based on hatred and an­
tagonism. A substantial minority of those outstand­
ing citizens appointed by the President on his Com­
mittees on Higher Education and Civil Rights were 
not in favor or forced mixed schools at this time.143 
This and the other evidence set out in the brief dem­
onstrate that the policy of the people of Texas is not 
wholly without reason.

The trial court found as a fact that Petitioner 
was offered facilities and advantages substantially 
equal to those offered white students at The Univer­
sity of Texas. Petitioner did not present that fact 
issue to the appellate courts of Texas. The fact 
question is therefore not properly before this Court. 
But assuming that it is, there is substantial evi­
dence to support the fact finding.

The supervening facts all of which are not now be­
fore the Court, show that the law school of Texas 
State University has grown and expanded since the 
trial of this case. It has been found by the Amer­
ican Bar Association and the American Association' 
of Law Schools to meet their standards.

143 That group includes Dr. Arthur H. Compton, Chan­
cellor, Washington University, St. Louis; Douglas S. Free­
man, Editor, Richmond Times-Dispatch; Lewis Jones, Pres­
ident, University of Arkansas; Goodrich C. White, Pres­
ident, Emory University, and Senator Frank P. Graham 
of North Carolina, formerly President of the University 
of North Carolina. Dr. Charles W. Eliot, former President 
of Harvard, said that if the proportion of Negroes in the 
North should become large, he would approve of separate 
schools.



■127—

It is therefore respectfully submitted that this 
case should be affirmed.

Price Daniel 
A ttorn ey  General o f  Texas

Joe R. Greenhill
F irst A ssistant A ttorn ey  General

E. Jacobson
Assistant A tto rn ey  General 

A ttorn eys  fo r  Respondents.



Appendix 

- 1 2 8 -  

APPENDIX  

FIRST SECTION

The Background and Contemporaneous Construc­
tion of the Fourteenth Amendment Sustain the 
States in Their Power to Regulate Their Schools, 
Including the Right to Have Separate Equal Schools 
for White and Negro Students.

I. CONGRESSIONAL A C T IO N : HISTORY OF STAT­
UTES R E LA T IN G  TO SCHOOLS A N D  CIVIL RIGHTS 
A N D  OF TH E ADOPTION OF TH E FOURTEENTH 
A M E N D M E N T .

A . The Period 1861-1865 Preceding the Proposal of 
the Fourteenth Amendment During Which Time 
Congress Established Separate Schools in the 
District of Columbia.

The policy of the Congress from the beginning has 
been to provide separate schools for white and Negro 
children. After the abolition of slavery in the Dis­
trict in April, 1862, the Congress on May 20,1862, 
enacted a bill to provide instruction for Negro and 
white youth outside the cities in Washington Coun­
ty.1 A board of commissioners was empowered to 
provide schools for Negro children to be supported 
by a tax on Negro property. On May 21, 1862, a 
bill was enacted “providing for the education of col­
ored children in the cities of Washington and George-

1 12 Stat. 394 (1862) ; Statutes 1861-62, Ch. 77. All num­
bers in parentheses refer to page numbers in the Congres­
sional Globe through 1873 and to the Congressional. Record 
thereafter. All material in this portion of the Appendix is 
from those sources unless otherwise indicated.



- 1 2 9 -

town,”  to be su p p orted  b y  a ta x  on N e g ro  p rop erty  
in the cities.2

On Ju ly 11, 1862, an A c t  w as ap p roved  “ re la tin g  
to schools fo r  the edu cation  o f  co lored  ch ildren  in  the 
District o f  C olu m bia”  w h ich  created  another board , 
known as the “ B oa rd  o f  T ru stees  fo r  C olored  
Schools,”  to m an age  the N e g ro  schools and handle 
their fu n ds.3

Edw ard Ingle  observed  th a t these A c ts  w ere  in ­
effectual because insu fficien t fu n d s  w ere  ra ised , and 
that it w as not u n til M arch , 1864, th a t the firs t  
Negro school w as opened in  the D is tr ic t .4

On June 25, 1864, C on gress en acted  a la w  rep ea l­
ing the portions o f  the A c ts  o f  M a y  20, 1862, sup ­
porting N egro  schools b y  ta x a tion  on  N e g ro  p ro p e rty  
only. It prov ided  that a p rop ortion  o f  all school fu n d s  
raised in W ash in gton  and G eorgetow n  should be set 
aside fo r  N egro  schools in  the p rop ortion  th a t the 
number o f  N eg ro  ch ild ren  bore  to  the n u m ber o f  
white ch ildren .5

B. The Period of the Adoption of the Fourteenth 
Amendment 1866-1868.

On January  5 ,1 8 6 6 , S en ator T ru m b u ll in trod u ced  
the first supplem ental F reed m en ’ s B u reau  B ill, p ro -

212 Stat. 407 (1862) ; Statutes 1861-62, Ch. 83. No 
public provision for the Education of Negro children of the 
District of Columbia was made prior to these acts. H. R. 
Exec. Doc. No. 315; 41st Cong., 2nd Sess. (1869-70).

312 Stat. 537 (1862) .
Ingle, The Negro in the District of Columbia, Johns 

nopkms University, 11th Series (1893), p. 25. 
cc -̂ eP°rt °f Commissioner on Education 1871, p.
65; 13 Stat. 187 (1864).

Appendix



— 130—

Appendix

v id in g , a m on g  oth er th ings, f o r  certa in  civ il rights 
f o r  N eg roes  “ such  as the r ig h t  to  e n fo rce  contracts, 
sue, g iv e  evidence, in h erit, and  to  sell, lease, or con­
v e y  re a lty .” 3 On the sam e d a y  he in troduced  what 
becam e the C iv il R ig h ts  A c t  o f  1866. Unlike the 
F reed m en ’ s B ill w h ich  w a s  app licab le  on ly  to the 
South , it  w a s  app licab le  to  all the States.

1. The First Supplemental Freedmen’s Bureau Bill

T his b ill w as one o f  the fo re ru n n e rs  o f  the 14th 
A m en d m en t, and  is  im p orta n t in  exam in in g  the in­
tended  e ffect o f  the A m en d m en t. I t  prov ided  certain 
sp ecific  c iv il r ig h ts  f o r  the recen tly  em ancipated Ne­
g roes . H ow ev er, m ost o f  its  p rov is ion s  dealt with 
the g ov ern m en t o f  the d e fea ted  S ou th .6 7 Section 6 
em pow ered  a C om m ission er to  p rov id e  buildings for

6II James G. Blaine, Twenty Years in Congress (1874), 
pp. 209-210; Cong. Globe, 39th Cong., 1st Sess., p. 129; 
Flack, The Adoption of the Fourteenth Amendment, p. 12. 
The first Freedmen’s Bureau Bill was enacted in March 
1865. It made no reference to education. 38th Cong., 2nd 
Sess., p. 96. Lee had surrendered in April of 1865. Lincoln, 
who was assassinated in April, 1865, had been succeeded as 
President by Andrew Johnson of Tennessee. Almost from 
the beginning, Johnson and the Congress were at odds on 
Reconstruction policy. The feud ended in an unsuccessful 
attempt to impeach Johnson. It will be remembered that all 
during this period, the Representatives and Senators from 
most of the Southern States were not allowed to take their 
seats in Congress. So of course the South had no voice in 
the passage of these acts.

7 39th Cong., 1st Sess., pp. 209, 314, 339, 362, 392, 415. 
The bill was debated in the Senate January 19-25, 1866.



Appendix

•131

asylums and schools f o r  the freed m en .8 T h ere  is 
nothing in the debates th a t in d ica ted  that C on g re js  
intended these schools to be m ixed  
members, speaking  a g a in st the bill

schools.9
Sections 7 and 8 dea lt w ith  sp ecific  c iv il r ig h ts  o f  

the freedm en. S ection  7 p rov id ed  th a t i f ,  because o f  
any State or local law , custom , o r  p re ju d ice  “ a n y  o f  
the civil righ ts o r  im m u n ities  b e lon g in g  to  w h ite  
persons, in clu d in g  the r ig h t  to m ake and e n fo rce  con ­
tracts, to sue, be p arties , and g iv e  ev id en ce ; to  in ­
herit, purchase, lease, sell, hold  and con v ey  rea l and 
personal p roperty , and to have fu ll  and equal benefit 
of all laws and proceed in gs f o r  the se cu r ity  o f  person  
and estate, are re fu sed  o r  den ied  to n egroes  . . .  on 
account o f  race . . .  it  shall be the d u ty  o f  the P res ­
ident o f  the U nited  States, th rou g h  the C om m ission ­
er, to extend m ilita ry  p ro tection  . . . over  all cases 
affecting such persons so d iscr im in a ted  a g a in st.” 10

Section 8 provided that i f  any person subjected 
any Negro or other person, on account of race, “ to

8 hi at 395. It was provided that no contracts for such 
buildings should be let until congressional appropriation 
bad been made therefor.

9 Dawson of Pennsylvania, speaking more of the theories 
ot certain radical Republicans, indicated that they would 
UKe to force mixed schools. 39th Cong., 1st Sess., p. 541.

OUSSeaU of Kentuckv lTvfm"TnpH tVia UnnaD +Tiaf -i-n nViovloa-

fear that it  m igh t be con stru ed



— 132—

the d ep r iv a tion  o f  a n y  c iv il r ig h t  secured  to white 
persons, o r  to  a n y  d iffe ren t p u n ish m en t . . he 
should  be g u ilty  o f  a  m isd em ean or .11

T he b ill passed  the S enate J a n u a ry  2 5 ,1 8 6 6 ,12 and 
passed the H ouse w ith  am endm ents not relevant 
here, on  F e b ru a ry  6 , 1 86 6 .13 T h ere  w a s  som e discus­
sion  o f  S ection  6 w ith  re fe ren ce  to  schools, but it had 
to  do w ith  p ro v id in g  som e ty p e  o f  education  for the 
N eg ro . R ep . D on n elly  m ade it  p la in  th a t the Negro 
shou ld  be educated  b y  N orth ern  teachers so they 
w ou ld n ’ t  be ed u ca ted  to  g lo r i fy  R ob ert  E . Lee and 
the S ou th ern  tra d it io n .14

P resid en t Johnson  vetoed  the A c t  on  February 19, 
1866 .15 T he b ill fa ile d  to g e t  th e  necessary two- 
th ird s  vote  to  ov err id e  the v e to .16

A s  w a s  the case w ith  the C iv il R igh ts  Bill, there 
w ere  m a n y  m em bers o f  C on gress w h o thought the 
A c t  u n con stitu tion a l. F la ck  says, “ T here seems to

Appendix

11 39th Cong., 1st Sess., at 319.
12 Id. at 421.
13 Id. at 688. The Senate agreed to the House Amend­

ments and made an additional amendment on February 8, 
1866 (p. 748). The House agreed to the Senate Amendment 
February 9, 1866 (p. 775). The bill was debated in the 
House from Jan. 26 through Feb. 2. (Id. at pp. 512, 538, 
585, 618.)

14 Id. at 585.
15 Id. at 915.
16 Id. at 943, February 20, 1866; a similar bill was enacted 

over the President’s veto in July, 1866, after the resolution 
proposing the 14th amendment had been enacted. 14 Stat. 
173 (1866) ; See Flack, The Adoption of the Fourteenth  
Amendment, pp. 18, 19.



— 133—

Appendix

be little doubt but th a t it  w as u n con stitu tion a l and
that it could sca rce ly  be ju s tified  even as a  w a r  m eas­
ure.” 17

2. The Civil Rights 'Act of 1866

In in terpretin g  the in ten t and scope o f  the 14th 
Amendment, th is b ill, a n oth er fo re ru n n er , is p a rt ic ­
ularly im portan t because its  p rov is ion s  had a defin ite  
bearing on the adoption  and  m ea n in g  o f  the first sec­
tion o f that am endm ent.

On Jan u ary  2 9 ,1 8 6 6 , S en a tor  T ru m b u ll exp la in ed  
the extent o f  his C iv il R ig h ts  A c t  o f  1 8 6 6 :

“ The r ig h t  to  m ake and  en fo rce  con tracts , to 
sue and be sued, to  g iv e  ev idence, to  in h erit, p u r ­
chase, lease, sell, hold , and con v ey  rea l and p e r ­
sonal p rop erty  and to  fu ll  and  equal ben efit to 
all law s and p roceed in g s  f o r  the se cu r ity  o f  
person and p ro p e rty .” 18

The bill, in section one, defined citizenship in the 
United States:

“ T hat afi persons b orn  in  the U n ited  S tates 
and not su b ject to a n y  fo r e ig n  p ow er, ex clu d in g  
Indians n ot taxed , a re  h ereb y  decla red  to  be c it ­
izens o f  the U n ited  S tates .” 19

F ade, The Adoption of the Fourteenth Amendment 
(1908), p. 14. Flack observed that “the measure was un- 
wise and inexpedient to say the least of it, for it retarded 
atner than aided reconstruction.”
18 39th Cong-., 1st Sess., pp. 476, 599.
1914 Stat. 27 (1866).



— 134—

It  con tin u ed , as o r ig in a lly  in trod u ced , w ith  broad 
g en era l p rov is ion s  as to  c iv il r ig h t s :

“ T h a t th ere  shall be no d iscr im in ation  in the 
c iv il r ig h ts  o r  im m u n ities  a m on g  the inhabit­
an ts o f  a n y  S tate  o r  T e r r ito r y  o f  the United 
S tates on  a ccou n t o f  ra ce , co lor , o r  previous con­
d it ion  o f  s la v e ry ; b u t the in h abitan ts o f  every 
ra ce  a n d  co lo r  . . . shall h ave the sam e rights 
to  m ake and en fo rce  con tracts , to  sue, be parties, 
and g iv e  evidence , to  in h erit, purchase, lease, 
sell, hold  and con v ey  rea l and  personal prop­
erty , and  to  fu ll  an d  equal b en efit o f  all laws 
and  p roceed in g s  f o r  the se cu r ity  o f  person and 
p rop erty , and shall be su b je ct  to  like punish­
m ent, p a in s, an d  pen a lties , and to  none others, 
a n y  law , statu tes, ord in an ce , regulation, or 
cu stom  to  the c o n tra ry  n otw ith stan d in g .” 20

W h en  th is b ill w a s  b e fo re  the H ouse on March 1, 
1866, its  flo o r  lead er w a s  R ep . Jam es F . Wilson of 
Iow a , C h a irm an  o f  the J u d ic ia ry  Committee, to 
w h ich  the b ill had  been  com m itted . H e explained 
the b roa d  la n gu age  o f  the b ill, and assured  the House 
th a t the b ill d id  n ot r e fe r  to  schools and did not re­
qu ire  m ix ed  sch o o ls :

“ T h is  p a r t  o f  the b ill w ill  p robably  excite 
m ore  op p osition  than  a n y  other. . . . What do 
these term s m ea n ? D o  th ey  m ean that in all 
th in g s  c iv il, socia l, p o lit ica l, all citizens, with­
ou t d istin ction  o f  ra ce  o r  co lor , shall be equal. 
By no means can they be so construed. . • • A°r

Appendix

20 39th Cong., 1st Sess., pp. 474, 1117.



- 1 3 5 -

do they meaori that . . . their children shall 
attend the same schools. These are not civil 
rights or immunities.” 21

W ilson th ere fore  m oved  that the b ill be recom ­
mitted to com m ittee .22

Rep. B ingham  o f  O hio also th ou gh t the lan gu age  
of the bill w as too b roa d .23 H e m oved  to  am end the 
motion to recom m it the b ill to  add in stru ction s  to the 
com m ittee:

“ to strike ou t o f  the firs t  section  the w o rd s  ‘and 
there shall be no d iscr im in a tion  in  the c iv il 
rights o r  im m u n ities  a m on g  citizen s o f  the 
U nited S tates . . .  on  a ccou n t o f  ra ce , co lor, or  
previous con d ition  o f  s la v ery  . . .’ ” 2i

21 39th Cong., 1st Sess., p. 1117. An illustration of the op­
position to the broad language was shown in the speech of 
Rep. Rogers of New Jersey. He pointed out that Pennsyl­
vania had separate schools for white and Negro children. 
He opposed Federal intervention into the State’s affairs. 
He characterized the language of the bill as “broad and 
dangerous.” 39th Cong., 1st Sess., p. 1121, March 1, 1866. 
Rep. Thayer of Pennsylvania was of the same view as Wil­
son on the limited extent of the bill: that the same general 
words of the bill were limited to the specific rights men­
tioned therein. (Id. at 1151.) Rep. Kerr of Indiana was 
alarmed at the possibility that the bill might force the mix- 
ln£ °f whites and Negroes in public schools and churches 
U«. at 1268). Senator Cowan of Pennsylvania said his 
State provided separate schools for the races and that it 
would be monstrous to have his school officials tried as crim­
inals. (id. at 500.)

22 Id. at 1115, 1162.
23 39th Cong., 1st Sess., p. 1291. March 9, 1866.

j , ,. • â , 1271-1272. His amendment also proposed the 
in +i,10T?°n , in'iminnl penalties and inserted civil liability

® , ederal Courts. The amendment was defeated, but 
wp , was recommitted to committee. His suggestions were adopted by the committee.

Appendix



- 1 3 6 -

In  an sw er to  B in gh a m  and o th er representatives 
w h o  ob jected  to  “ the g lit te r in g  gen era lit ie s”  o f the 
b ill, W ilson  sa id  th a t h is b ill d id  n ot “ invade the 
S tates to  en fo rce  eq u a lity  o f  r ig h ts  in  respect to 
th ose  th in gs w h ich  p ro p e r ly  and r ig h t fu lly  depend 
on S tate  reg u la tion s  and la w s .”  R e fe r r in g  to Bing­
ham , W ilson  said ,

“ H e k n ow s, as e v ery  m an  k n ow s, that this bill 
r e fe r s  to  th ose  r ig h ts  w h ich  b e lon g  to  men as 
citizen s o f  the U n ited  S tates an d  none other; 

!. and when he talks of setting  ̂ aside school laws 
. . .  of the States b y  the b ill n ow  under con­
s id era tion , he steps beyon d  w h a t he m ust know 
to  be  the  ru le  o f  con stru ction  w hich  must 
a p p ly  h ere .” 25

A ft e r  the  d iscu ssion , the b ill w a s  recom m itted to 
com m ittee  on  M a rch  9, 1866 .26

O n M a rch  13, 1866 , W ilso n  b rou g h t the Civil 
R ig h ts  B ill ou t o f  com m ittee . I t  h ad  amended the 
b ill as B in gh a m  h ad  s u g g e s te d : i. e., i t  took out the 
b roa d , g en era l la n g u a g e  as to  c iv il r igh ts  and named 
certa in  sp ecific  r ig h ts . S chools w ere  n ot mentioned. 
T he C om m ittee  A m en d m en t r e a d :

“ S trik e  ou t . . . the fo llo w in g  w ords:

“  ‘W ith o u t  d istin ction  o f  co lo r ,_ and there 
shall be no d iscr im in a tion  in  civ il rights or im-

25 39th Cong., 1st Sess., p. 1294.
26 Id. at 1296.

Appendix



— 137—

m unities a m on g  citizen s o f  the U n ited  S tates 
. . .  on a ccou n t o f  ra ce , co lor , o r  p rev iou s con ­
dition o f  s la v ery .’

“ So that the section  w ill read  as fo l lo w s :

“  ‘T hat all p erson s born  in  the U n ited  S tates 
and not su b ject to  a n y  fo r e ig n  P ow er, exclu d ­
ing Ind ians n ot taxed , a re  h ereby  decla red  to 
be citizens o f  the U n ited  S ta tes ; and  such  c it ­
izens o f  every  ra ce  and co lor , w ith ou t re g a rd  to 
any p rev iou s con d ition  o f  s la v ery  o r  in vo lu n ­
tary servitude, ex cep t as a pun ish m en t fo r  cr im e  
w hereof the p a r ty  shall have been  d u ly  con ­
victed, shall have the sam e r ig h t  to  m ake and 
enforce con tracts , to sue, be parties , and g iv e  
evidence, to  in h erit, pu rch ase, lease, sell, hold, 
and convey  rea l and  person a l p rop erty , and to 
full and equal benefit o f  all la w s and  proceed ­
ings fo r  the se cu r ity  o f  person  and  p ro p e rty  as 
is en joyed b y  w h ite  citizens, and  shall be su b ject  
to like punishm ent, p a in s, and penalties, and to  
none other, a n y  law , statu te, ord in an ce , reg u la ­
tion, or custom  to  the c o n tra ry  n otw ith stan d ­
ing.’ ”

W ilson explained the com m ittee ’s a c t io n :

. . the am endm ent . . . p rop oses  to strik e  
out the genera l term s re la tin g  to  c iv il r igh ts . 
I do not th ink  it  m a ter ia lly  changes the bill.

Appendix

. “ • • • Som e m em bers o f  the H ou se  th ou gh t, 
m the general w ord s  o f  the firs t  section  re la t­
ing to civ il r igh ts, it  m ig h t be held b y  the cou rts

=T 39th Cong., 1st Sess., p. 1366.



— 138—

that the r ig h t  o f  su ffra g e  w a s  included  in those 
r igh ts . T o  obv ia te  th a t d ifficu lty  and the diffi­
culty growing out of any other construction be­
yond the specific rights named in the section, 
ou r  am endm ent strik es ou t all o f  those general 
term s an d  leaves the b ill w ith  the rights speci­
fied  in  the section .” 28

W ith  a fe w  oth er ch an ges im m ateria l here, the bill 
passed  the H ou se  M a rch  13, 1866 .29 W h en  the bill 
w as re tu rn ed  to  the Senate, it  w a s  re ferred  to the 
J u d ic ia ry  C om m ittee. On M a rch  15, 1866, Senator 
T ru m b u ll rep orted  the b ill to  the S enate with the 
com m ittee ’ s recom m en d ation  th a t the bill be passed 
as am ended  in  the H ouse. T he S enate adopted the 
H ou se  am endm ents w ith ou t debate on M arch 15, 
1 86 6 .30

P res id en t Johnson  retu rn ed  the b ill to Congress 
w ith  a veto  a ccom p an ied  b y  a lon g  veto  message on 
M a rch  27, 1866. It  w a s  passed  ov er  the veto in the 
S enate on  A p r il  6, 1866, and in  the H ouse on April 
9, 1866 .31 T h e b ill thus becam e la w  on April 9, 
1866 .32

T h a t C on gress d id  n ot in te rp re t  th is A ct as pro­
h ib it in g  sep ara te  equal schools f o r  w hites and Ne­
g ro e s  is ev iden ced  b y  the fa c t  th a t separate schools 
f o r  ch ild ren  o f  the tw o  ra ces  con tin u ed  to be main­
ta in ed  b y  C on gress in  the D is tr ic t  o f  Colum bia after 
its  e ffective  date. (T h e  N e w  Y o r k  C ourt in 1869

28 39th Cong., 1st Sess., p. 1367.
29 Id. at 1367.
30 Id. at 1413-1416.
31 Id. at 1679, 1808, 1861.
3214 Stat. 27 (1866).

Appendix



— 139—

Appendix

held that th is A c t  d id  n ot in va lid a te  separate  schools 
for white and N eg ro  students in  B u ffa lo , N . Y . Dal­
las v. Fosdick, 40 H ow . P ra c . 249 . T he In d ia n a  
Court in 1874 ru led  to  the sam e effect. Cory v. Car­
ter, 48 Ind. 3 2 7 .)

There w ere  m an y  in  the C ongress w ho believed  the ■ 
Civil R ights B ill o f  1866 to be u n con stitu tion a l.33 
Mr. B ingham  o f  O hio, an an ti-S ou th ern  leader and 
a member o f  the R econ stru ction  C om m ittee, thought 
the bill u ncon stitu tiona l because, a m on g  other th ings, 
it invaded the r igh ts  reserved  to  the S tates.34 H e 
therefore advocated  the adoption  o f  an  am endm ent 
to the Federal C onstitu tion .

3. The Congressional Resolution Proposing the 
Fourteenth Amendment

Many R epublicans, e ith er because th ey  doubted  
the constitu tionality  o f  the C iv il R ig h ts  B ill o r  be­
cause they fea red  th a t it  m ig h t be repea led  b y  som e 
subsequent C ongress, w e re  desirou s o f  w r it in g  som e 
guarantee o f  this n a tu re  in to  the C on stitu tion .35 T he 
result w as their p rop osa l o f  the F ou rteen th  A m en d ­
ment. Because o f  the d isagreem en t betw een  C on­
gress and P resident Johnson  (w h o  w a s  ca rry in g  f o r ­
ward L incoln ’ s p lan  o f  re con stru ction ) th ere  had

w-3 n' FePres.entatives Saulsbury of Delaware, Van 
inkle of West Virginia, Cowan of Pennsylvania, Reverdy 

o nson of Maryland, Davis of Kentucky, Guthrie of Ken- 
uoAi a  ̂ ^ee Flack, op. cit. supra, pp. 22-25.
I! 39^ Cong., 1st Sess., p. 1291.

Kendrick, The Journal of the Joint Committee of Fif­
teen on Reconstruction (1914) p. 215.



— 140—

been established  “ T he J o in t  (C on g ress ion a l) Com­
m ittee  o f  F ifte e n  on  R econ stru ction ,”  in  which nu­
m erou s recon stru ction  m a tters  w ere  decided upon, 
in c lu d in g  the question  o f  the (n o n ) representation of 
the S ou th ern  S tates in  the C on gress .86 So the res­
o lu tion  p rop os in g  the am en dm en t w a s  first consid­
ered  in  and  a p p rov ed  b y  th is  po licy -m ak in g  com­
m ittee .87 D u r in g  the cou rse  o f  the deliberations the 
com m ittee  re je cted  a reso lu tion  w h ich  contained a 
p rov is ion  that

“ . . . a ll p rov is ion s  in  the  Constitution or 
la w s o f  a n y  S tate, w h ereb y  a n y  distinction is 
m ade in  p o lit ica l o r  c iv il r ig h ts  o r  privileges, 
on  a ccou n t o f  ra ce , creed  o r  co lor , shall be in­
op era tiv e  and  v o id .” 88

A ft e r  exten ded  d e libera tion  a resolution was 
fin a lly  a g reed  u p on  b y  a vote  o f  7 to  6 on February 
3, 1866, w h ich  p rov id ed  th a t

“ T he C on gress  shall have p ow er to make all 
la w s w h ich  shall be n ecessa ry  and proper to

36 The “Committee of Fifteen,” established at the insist­
ence of Mr. Thaddeus Stevens and other extreme anti- 
Southerners, was composed of 12 Republicans: Senators 
Fessenden of Maine, Grimes of Iowa, Williams of Oregon, 
Harris of New York, and Howard of Michigan, and Rep­
resentatives Stevens of Pennsylvania, Bingham of Ohio, 
Conkling of New York, Boutwell of Massachusetts ,Wash- 
burne of Illinois, Morrill of Vermont, and Blow of Missouri. 
The Democrats were Senator Johnson of Maryland and Rep­
resentatives Grider of Kentucky and Rogers of New Jersey 
For an excellent history of the background and personnel of 
the Committee see Kendrick, op. cit., supra, at 133-197.

37 Id. at 46 et seq.
38 Id. at 50.

Appendix



Appendix 

— 141—

secure to the citizen s o f  each  sta te  all p r iv i­
leges and im m u n ities  o f  citizen s in  the severa l 
states; and to  all person s in  the  severa l states 
equal p rotection  in  th e  r ig h ts  o f  life , lib e r ty  
and p rop erty .”

On F ebru ary  13, 1866, th is reso lu tion  w as in tro ­
duced in the S enate b y  S en a tor  F essenden ,39 and in  
the House by  M r. B in g h a m .40

Mr. B ingham  a rg u ed  th a t the p rop osed  reso lu tion  
simply w ould g ra n t  C on gress  the a u th or ity  to  en­
force existing F ed era l S tatu tes (in c lu d in g  the 1866 
Civil R ights A c t )  and  the r ig h ts  a lrea d y  g u a ra n ­
teed in the F edera l C on stitu tion .41 T h is  is in  a ccord  
with the v iew  he had p re v io u s ly  expressed  th a t he 
doubted the con stitu tion a lity  o f  the C iv il R ig h ts  B ill. 
Rep. Rogers, a D em ocra t o f  N e w  Jersey , w h o w a s  a 
member o f  the J o in t C om m ittee  o f  F ifte e n , a rg u in g  
against the resolu tion , sta ted  th a t C on gress w ou ld  
have the pow er, in  the fu tu re , to  leg is la te  w ith  re ­
gard to schools.42 T he ten or  o f  som e oth er speeches 
was the same. Those in  fa v o r  o f  the am endm ent a r ­
gued that it  m erely  g a v e  C on gress  p o w e r  to  e n fo rce  
existing constitu tional and s ta tu to ry  p rov is ion s, and

9 39th Cong., 1st Sess., p. 806. No action was immedi­
ately taken by the Senate.

40 Id. at 813.
Hof ^  ®ess., P- 1033. He brought the matter

-I16 House on Feb. 26, 1866, and after three days of 
ueDate it was deferred until April. Id. at 1033, 1095.

2 39th Cong., 1st Sess., Appendix, p. 133.



— 142—

Appendix

those opposed  a rg u in g  th a t its  g ra n t  o f  legislative 
p o w e r  to  C on gress w a s  too  b roa d .43

T h e ir  fir s t  p rop osa l h a v in g  fa ile d , the Joint Com­
m ittee  a ttem p ted  to  d r a ft  one w h ich  w ould  secure 
the a p p rov a l o f  C ongress. A f t e r  debating from 
A p r il  21, 1866, the com m ittee  on  A p r il  28 decided 
u pon  a reso lu tion , con ta in in g  in  S ection  1 the pro­
v is ion  :

“ N o  S tate  shall m ake o r  e n fo rce  any law 
w h ich  shall a b r id g e  the p r iv ileg es  o r  immuni­
ties  o f  citizen s o f  the U n ited  S ta tes ; nor shall 
a n y  sta te  d ep r iv e  a n y  person  o f  life , liberty, or 
p ro p e r ty  w ith ou t due process  o f  la w ; nor deny 
to  a n y  person  w ith in  its  ju r isd ic t io n  the equal 
p ro te c tion  o f  the la w s .” 44

N o  p rov is ion  w a s  o ffered  in  the m eetings of the 
J o in t  C om m ittee  as rep orted  in  the Journal which 
w ou ld  in d ica te  th a t it  w a s  the in ten t o f  the Com­
m ittee  to  en fo rce  m ix ed  ed u ca tion a l fa cilitie s .45 Along 
w ith  the p rop osed  am endm ent, the J o in t Committee 
on R econ stru ction  p rep ared  f o r  C ongress a majority 
and a m in o r ity  com m ittee  rep ort, n eith er o f  which 
m ade a n y  re fe re n ce  to  schools  o r  ind icated  that the

43 39th C ong., 1st Sess., pp. 1054-1067, 1083-1095. Mr.
H ig b y  (C a l.) 1054-1056 ; M r. R andall (P a .)  1056; Mr. 
K elley  (P a .)  1057-1063 ; M r. H ale (N . Y .)  1063-1066; Mr. 
P r ice  (Io w a )  1066-1067 ; M r. D avis  (N . Y .)  1083-1087; Mr. 
W ood b rid g e  (V t .)  1087-1088 ; M r. B ingham  (O hio) 1088- 
109 4 ; M r. C on klin g  (N . Y .)  1094 -1095 ; M r. Hotchkiss («• 
Y .)  1095. . ,

44 K endrick , T he Journal o f the Joint Committee of rtj- 
teen  on R econstruction  (1 9 1 4 ), p . 106.

45 Id. at 37-129.



— 143—

proposed resolution was to cover anything more than 
the civil rights already discussed and embodied in the 
Act of 1866.46 The report for the majority47 after 
reciting a history of the measures of reconstruction 
up to the time of the report, states that instead of 
being mere chattels, the former slaves had become 
free men and citizens. The report continues with 
regard to the freedmen stating that

“It was impossible to abandon them, without 
securing them their rights as free men and cit­
izens. . . . Hence it became important to in­
quire what could be done to secure their rights, 
civil and political. It was evident to your com­
mittee that adequate 'security could only be 
founcHn appropriate constitutional provisions.

Appendix

The majority then reviews the evidence on the 
state of affairs in the former Confederate States, 
and on the basis of this evidence the opinion of the 
majority of the committee was that

“Congress would not be justified in admitting 
such communities to a participation in the gov­
ernment of the country without first providing

w  cP ^ ^ o r ts  ° f  the Com m ittees o f  the H ouse, 39th Cong., 
1st Sess., V I-X X I, 1-13.

by Fessenden, Grimes, Harris, Howard, Wil­
is t t  ^ evens’ Morrill, Bingham, Conkling, and Boutwell.

1st S e r a X i n  ° f  tke Com m ittees ° f  the House, 39th Cong.,



— 144—

Appendix

such constitutional or other guarantees as will 
tend to secure the civil rights of all citizens of 
the republic . . .”49

In summary the conclusions of the majority were:
“The conclusion of your committee therefore 

is, that the so-called Confederate States are not, 
at present, entitled to representation in the Con­
gress of the United States; that, before allow­
ing such representation, adequate security for 
future peace and safety should be required; that 
this can only be found in such changes of the 
organic law as shall determine the civil rights 
and privileges of all citizens in all parts of the 
republic, shall place representation on an equi­
table basis, shall fix a stigma upon treason, and 
protect the loyal people against future claims 
for the expenses incurred in support of rebellion 
and for manumitted slaves, together with an 
express grant of power in Congress to enforce 
those provisions. To this end they offer a joint 
resolution for amending the Constitution of the 
United States, and the two several bills de­
signed to carry the same into effect, before re­
ferred to.”50

The minority report51 is devoted mainly to the 
legal proposition that the States which had seceded 
had never actually left the Union and were, there­
fore, entitled to immediate representation in Con­
gress. Kegarding representation the report stated.

“What danger to the government, then, _can 
possibly arise from southern representation.

49II R eports o f the Com m ittees o f the House, 39th Cong., 
1st Sess., X V III.

50II Id. at X X I .
51 Signed by Reverdy Johnson, Rogers, and Grider.



- 1 4 5 -

Are the present senators and representatives 
fearful of themselves? Are they apprehensive 
that they might be led to the destruction of our 
institutions by the persuasion or any other in­
fluence of southern members? . . . Whatever 
effect on mere party success in the future such 
a representation may have we shall not stop to 
inquire.”52

Speaking of the plan of representation and the 
fact that the Negro was not granted suffrage, it was 
stated:

“That would be obnoxious to most of the 
northern and western states, so much so that 
their consent was not anticipated; but as the 
plan adopted, because of the limited number of 
negroes in such states, will have no effect on 
their representation, it is thought it may be 
adopted, while in the southern states it will ma­
terially lessen their number . . .”53

This new resolution was introduced in both Houses 
of Congress on April 30.54 Mr. Thaddeus Stevens 
opened debate in the House on May 8 and in reply to 
the contention that the Civil Rights of 1866 secured 
the same things as were placed in Section 1 of the 
resolution, he said that the bill was repealable and 
that repeal should be placed beyond the power of Con-

52II Reports o f the Com m ittees o f  the House, 39th Cong., 
1st Sess., p. 7.

53 Id. at 9.
54 39th Cong., 1st Sess., pp. 2265, 2286.

Appendix



— 146—

gress.55 Mr. Finck of Ohio stated that if the first 
section were necessary then the Civil Rights Bill was 
unconstitutional.35 36

Mr. Garfield of Ohio pointed out in answer to Mr. 
Finck that the reason for placing the provisions of 
the Civil Rights Bill in the Constitution was so that 
if the Democrats ever returned to power the bill 
could not be repealed.57 Mr. Thayer of Pennsylvania 
concurred in the views of the previous speakers as 
to the effect of Section l .68 Mr. Boyer of Pennsyl­
vania, a Democrat, also agreed that Section 1 only 
incorporated the Civil Rights Bill in the Constitu­
tion.59

Mr. Broomall of Pennsylvania spoke the next day, 
May 9, and reiterated the view that Section 1 of 
the amendment incorporated the Civil Rights Bill in 
the Constitution.60 Mr. Henry J. Raymond of New 
York, a conservative or Johnson Republican, who 
had voted against the Civil Rights Bill because he 
doubted its constitutionality, stated that Section 1 of 
the amendment had been before Congress in the Civil 
Rights Bill.61 Similarly, Mr. Eldridge, of Wisconsin, 
and Mr. Eliot, of Massachusetts, expressed the views 
of the previous speakers on Section l .62

On the last day of debate Mr. Rogers of New 
Jersey declared that the amendment was no more

35 39th Cong., 1st Sess., p. 2459.
56 Id. at 2461.
6T Id. at 2462.
68 Id. at 2464.
59 Id. at 2465.
60 Id. at 2498.
61 Id., at 2501.
82 Id. at 2506, 2511.

Appendix



— 147—

Appendix

than “an attempt to embody in the Constitution of 
the United States that outrageous and miserable 
Civil Rights Bill.”63 Mr. Bingham, who had opposed 
the Civil Rights Bill, spoke in favor of the amend­
ment, repeating that it was necessary in order for 
Congress to protect the people from oppressive State 
laws.64 Mr. Stevens closed the debate; the previous 
question was moved and seconded; and, the joint res­
olution passed the House, 128 yeas, 37 nays.65 It is 
thus apparent that nearly all of the members of the 
House agreed that Section 1 of the proposed amend­
ment incorporated the provisions of the Civil Rights 
Bill into the Constitution.

The Senate started consideration of the joint res­
olution on May 23.66 Senator Howard of Michigan 
substituted for Senator Fessenden in presenting the 
measure and made the opening address. With re­
gard to the meaning of the first section he discussed 
the rights of “citizens of the United States” and the 
rights in the first eight amendments. He stated:

“• • . The great object of the first section of 
this amendment is, therefore, to restrain the 
power of the States and to compel them at all 
times to respect these great fundamental guar­
antees.”67 (Those guarantees he had mentioned 
earlier, none of which included mixed schools, 
although separate schools were being main-

39th Cong., 1st Sess., p. 2537.
64 Id. at 2541-2544.
65 Id. at 2544-2545.
66 Id. at 2765.

(1947) ^  2^ 6' Adamson v. California, 332 U.S. 46



— 148—

tained both by Congress and the great majority 
of the States then represented in Congress.)

Mr. Wade proposed an amendment which would 
have defined “citizens of the United States,” his pur­
pose being to assure protection to the Negro in the 
event the Civil Rights Bill was held unconstitu­
tional.88 No action was taken by the Senate on the 
joint resolution from May 24 to May 29, this period 
being devoted to a caucus of the Republican party. 
Upon returning to consideration of the resolution on 
May 29, Senator Howard offered a series of amend­
ments, the first of which added the definition of cit­
izenship which is now the first sentence of the Four­
teenth Amendment.69 Senator Doolittle charged that 
the first section was intended to validate the Civil 
Rights Bill and Senator Howard replied that a pur­
pose of the committee was to put the Civil Rights Bill 
beyond the legislative power.70

The final debate started on June 4 with Senator 
Hendricks remarking about the caucus of the Repub­
lican majority.71 Senator Poland of Vermont stated 
that Congress by passing the Civil Rights Bill had 
indicated its feeling toward certain legislation in 
some Southern States and that this amendment 
would remove any doubt as to the power of Congress 
to provide remedial legislation in this regard.72 Sen­
ator Howe of Wisconsin mentioned several rights and

Appendix

88 39th Cong., 1st Sess., p. 2768.
69 Id. at 2869.
70 Id. at 2896.
71 Id. at 2938.
72 Id. at 2961-2964.



- 1 4 9 -

privileges of citizens and cited as an example of law 
impossible under the amendment, a Florida statute 
which provided that in addition to being taxed to 
support the white schools only the Negroes were 
taxed to support their own schools.73

Senator John B. Henderson, of Missouri, indi­
cated by the tenor of his speech that he believed that 
Section 1 was an attempt to place the Civil Rights 
Act in the Constitution.74 The resolution passed the 
Senate June 8, 1866, 33 yeas, 11 nays.75

Summarizing, the legislative intent indicated by 
the Senate in debate revealed that the understanding 
of some Senators was that Section 1 incorporated 
the Civil Rights Bill in the Constitution, and even 
those who gave the amendment a broader scope 
thought that it gave Congress power to legislate 
against discriminatory State legislation. No Sen­
ator indicated that it was effective to abolish sep­
arate schools; indeed, this was not even hinted.

The House concurred in the Senate amendments 
to the joint resolution on June 13, 1866.76 after sev­
eral short speeches, including one by Mr. Rogers in 
which he objected to the Constitution being amended 
as a result of a party caucus.

That the people shared in the belief of the majority 
of Congressmen as to the effect of Section 1 of the 
proposed amendment is indicated by a review of the 
newspapers and political speeches made during the

73 39th Cong., 1st Sess., Appendix 217.
39th Cong., 1st Sess., pp. 3031-3036.

75 Id. at 3042.
76 Id. at 3148.

Appendix



- 1 5 0 -

period of the adoption of the amendment. The coun­
try understood that the Civil Rights Bill was being 
made a part of the Constitution. Those who gave 
Section 1 a greater effect thought that it, along with 
Section 5, vested great legislative powers in the Con­
gress. There was no indication that the amendment 
would enforce mixed schools.”  The contemporaneous 
construction of the amendment by the States, which 
manifests that same construction, is considered in 
another portion of this Appendix.77 78

The intent manifested by the Congress, the people, 
and the States with regard to the Fourteenth Amend­
ment was for the most part that Section 1 made the 
Civil Rights Bill of 1866 a part of the Constitution. 
An examination of this Civil Rights Bill reveals, as 
has been shown in this Appendix, that it covered 
certain specifically named rights which did not in­
clude mixed schools. Actually, it had been amended 
by its House sponsor, Mr. Wilson of Iowa, to make 
certain that it did not relate to or require mixed 
schools. See pages 133 to 139, supra. Taking the 
broadest interpretation given the resolution propos­
ing the Fourteenth Amendment (that in addition to 
putting the Civil Rights Bill beyond legislative power 
it made the Bill of Rights applicable to the States), 
separate schools would still not be made unlawful. 
Hence, the manifested intent in the adoption of the 
Fourteenth Amendment was not to deprive the

77 Flack, The Adoption of the Fourteenth Amendment 
(1908), pp. 140-160; Fairman, Does the Fourteenth Amend­
ment Incorporate the Bill of Rights? The Original Under­
standing, 2 Stanford Law Rev. 5 (1949).

78 See page 194, infra.

Appendix



- 1 5 1 -

States of the power to regulate their schools or to 
require them to have mixed schools. Any other in­
tent would have appeared directly in the Amend­
ment, Congressional debates, or public discussions, 
because separate schools were then being maintained 
by the States and the Congress.

4. Acts of Congress Relating to Separate Schools in 
the District of Columbia

During the consideration of the resolution propos­
ing the Fourteenth Amendment (February through 
June, 1866) and immediately thereafter, the Con­
gress enacted legislation furthering the separate 
schools it had previously established in the District 
of Columbia for white and Negro students.

On May 21, 1866, during the time that the Con­
gress was debating the Fourteenth Amendment, the 
Senate passed a bill to donate real estate in the Dis­
trict of Columbia for Negro schools.79 The Act, which 
became effective July 28, 1866, provided that

. “The Commissioner of public buildings . . . 
is hereby authorized and required to grant . . . 
to the trustees of colored schools for the cities 
of Washington and Georgetown . . . for the 
sole use of schools for colored children in said 
District of Columbia . . . lots 1, 2, and 18 in 
square 985 in . . . Washington, said lots hav­
ing been designated and set apart by the Secre­
tary of the Interior to be used for colored 
schools. . . .”80

, ’* p th Cong., 1st Sess., p. 2719. The bill (S. No. 247) 
ad been introduced on April 4 (id. at 1753), and reported 
sfl Committee on May 2 (id., at 2331).
8014 Stat. 343 (1866).

Appendix



— 152—

Similarly between April, 1866, and July 23, 1866, 
the Congress considered and enacted a bill changing 
the tax support for separate Negro schools in the 
District of Columbia.81 It amended the Act of June 
25, 1864, so as to require the cities of Washington 
and Georgetown

“to pay over to the trustees of colored schools 
of said cities such a proportionate part of all 
monies received or expended for school or edu­
cational purposes . . .  as the colored children 
. . .  in the respective cities bear to the whole 
number of children, white and colored. . . .”

On March 16, 1867, Senator Sumner of Massa­
chusetts proposed an amendment to a reconstruction 
bill making it a prerequisite to seating in Congress 
of Southern Congressmen that:

“The Constitution shall require the Legisla­
ture to establish and sustain a system of public 
schools open to all, without distinction of race 
or color.”

The amendment was defeated “to his bitter dis­
appointment.”82

Again on July 11, 1867, Sumner unsuccessfully 
attempted to amend a Reconstruction Act to require 
mixed schools.83

81 This bill, S. No. 246, was introduced April 4, passed 
the Senate May 21, passed the House July 18, and was ap­
proved by the President July 23, 1866. 39th Cong., 1st 
Sess., pp. 1753, 2719, 3906. 14 Stat. 216 (1866).

82 Storey, Charles Sumner, American Statesmen, Vol. oe, 
p. 334; 40th Cong., 1st Sess., p. 170.

ss W orks o f Charles Sum ner, Vol. 11, pp. 397-401; 
M em oirs and L etters  o f Charles Sum ner (1893), pp- 31 * 
317.

Appendix



— 153—

Appendix

C. The Period Immediately Following the Adop­
tion of the Fourteenth Amendment in 1868.

1. Acts of Congress Relating to Separate Schools in 
the District of Columbia

Soon after the adoption by the States of the Four­
teenth Amendment the Congress enacted a bill trans­
ferring the duties of the Negro trustees of the Negro 
schools of Washington and Georgetown, D. C., to the 
(white) trustees of the public schools of those cities. 
It left the schools separate for white and Negro 
students. The bill passed the Senate July 10, 1868, 
and the House on February 5, 1869.84 Its passage 
greatly disturbed the Negro citizens who wanted 
control of their schools left with Negro trustees. Sev­
eral Negro meetings were held and resolutions 
adopted by them condemning the bill for removing 
the control of the Negro schools from the Negro trus­
tees. So on February 13, 1869, President Johnson 
vetoed the bill because he said no good reason was 
shown why the Negro board should be abolished. 
The veto was not overridden.85

In February, 1871, the question of whether mixed 
or separate schools would be maintained in the Dis­
trict of Columbia was again thoroughly discussed.

Qio fot}l TCong-’ 2nd Sess., p. 3900; 40th Cong., 3rd Sess., p. 918 (S. No. 609).
40th Cong., 3rd Sess., p. 1164; Special Report of Com- 

2?cs:‘??e4r °f  Education 1871, p. 260; H. R. Exec. Doc. No. 
iW * 2nd Sess- G869-1870) ; Ingle, The Negro
(si, Thstnct of Columbia, Johns Hopkins University 
studies, llth Series, p. 28 (1893).



- 1 5 4 -

Senate Bill 1244, to reorganize the school system of 
the District, was proposed. Ingle summarized the 
move in this way:

“It was at this time . . . that the question 
of mixed schools was incontinently agitated, cul­
minating in a debate in Congress in . . . 1871, 
in which the effort was unsuccessfully made to 
remove all restrictions on account of color from 
all the public schools . . .”88

The Committee on the District of Columbia had 
amended Section 6 of the bill to provide that

“No distinction on account of race, color, or 
previous condition of servitude shall be made in 
the admission of pupils to any of the schools 
. . .  or in the mode of education or treatment 
of pupils in the schools.”86 87

Senator Patterson of New Hampshire moved 
to strike out the above words. He thought mixed 
schools would destroy the public schools of the city. 
He pointed out that “the Law of the District of 
Columbia as it now stands enforces a separation of 
whites and blacks in the schools.” He felt that to 
mix the common schools would greatly injure Negro 
education because white withdrawal from the schools 
would cause a loss of support for public schools. 
“This bill (with the clause omitted) is precisely like 
the law as it stands in our Northern States . . • 0-t/

86 Ingle, The Negro in the District of Columbia, Johns 
Hopkins University Studies, 11th Series, p. 29 (1893).

87 41st Cong., 3rd Sess., pp. 1053-4.

Appendix



— 155—

simply leaves it to the board of education to deter­
mine for themselves whether they will mix the whites 
and blacks or have separate schools. . . .”88

Senator Thurman of Ohio said the common schools 
were having enough difficulties without saddling the 
system with a compulsory mixing of the races. He 
thought the Government should not force sociolog­
ical ideas on people; that communities should be left 
to choose separate or mixed schools for themselves.89

Senator Tipton of Nebraska said that in his com­
munity there were only two or three Negro students; 
they were taken in and separated within the school 
building. But if there had been sufficient Negroes, 
separate schools would have been established.90

Senator Revels, a Negro Republican of Mis­
sissippi, Senator Sawyer of South Carolina, and 
Senator Wilson of Massachusetts advocated mixed 
schools.91

Senator Hill of Georgia moved to amend Patter­
son’s amendment to read that no distinction should 
be made in providing the m eans or m ode of education 
of white and Negro pupils.

The bill did not pass, and the schools of the Dis­
trict remained as they had been from the beginning, 
with separate schools for white and Negro students.

88 41st Cong., 3rd Sess., pp. 1054-1057.
89 Id. at 1057.
90 Id. at 1059.
91 Id., at 1059-1061.

Appendix



— 156—

2. The F irs t  and Second E n forcem en t Acts, 
1870 and 1871

On May 30,1870, “The Enforcement Act of 1870” 
was enacted. It dealt with the right of the Negro to 
vote and to the protection of that right. It also re­
enacted in Section 18 the Civil Rights Act of 1866. 
It added in Section 17 that if different punishment 
were administered to any person because of race, it 
would constitute a misdemeanor.92 It is significant 
to note that after the adoption of the Fourteenth 
Amendment, Congress did not enlarge on the rights 
enumerated in the Civil Rights Act of 1866. It 
simply reenacted that Act.

On February 28, 1871, the Second Enforcement 
Act was passed.93 It dealt wholly with elections and 
voting rights.

On October 24, 1871, a letter of Charles Sumner 
addressed to a national Negro convention in Colum­
bia, S. C., was read there. In it Sumner recognized

Appendix

9216 Stat. 140 (1870) ; 41st Cong., 2nd Sess., p. 3480; 
McPherson, Political History of the U. S. (2d ed. 1875), P- 
546. The first 11 sections dealt with Negro suffrage. Other 
sections dealt with penalties for interfering with the voting. 
Sections 19-23 dealt with elections. See Fleming, Docu­
mentary History of Reconstruction, Vol. II, p. 102. During 
this period, also, Senator Sumner introduced several “Sup­
plementary Civil Rights Bills” ; e„ g., S. R. 916, May 13, 
1870; Jan. 20, 1871, reported adversely by Committee. 41st 
Cong., 3rd Sess., pp. 619, 1263; March 9, 1871, 42nd Cong., 
1st Sess., p. 21. They were not enacted.

93 41st Cong., 3rd Sess., p. 45, amending the First En­
forcement Act of May 31, 1870; discussed Annual Cyclo­
pedia 1871, pp. 148, 153.



— 157—

and said that mixed schools were not required and 
that the Civil Rights Act needed amendment in that 
regard. The letter read in part:

The right to vote will have new security 
when your equal right in public conveyances, 
hotels, and common schools is at last established; 
but here you must insist for yourselves by 
speech, petition, and by vote. Help yourselves, 
and others will help you also. The Civil Rights 
law needs a supplement to cover such cases. 
This defect has been apparent from the begin- 
ning; and, for a long time I have striven to re­
move it.”94

Appendix

In January, 1872, Sumner again urged his civil 
rights bill, saying to the Senate that: “Without 
the amendment the original law is imperfect.”95

3. The Unsuccessful Attempt to Enact Forced 
Mixed Schools as Part of a Civil Rights Amend­

ment to The General Amnesty Bill.

In December, 1871 and in 1872 a sustained attempt 
was made to enact a civil rights bill, including 
a provision for mixed schools, by amendment to an 
amnesty bill removing legal and political disabil­
ities imposed by the third section of the Fourteenth 

mendment. The amnesty bill required a two-thirds 
majority to pass while the civil rights bill, by itself, 
Required on^  a simple majority. Sumner was suc-

l f  4ppni752-753Cl°Pe îa 1871 (Appleton & Co- 1872)> Vol.
5 42nd Cong., 2nd Sess., p. 383, January 15, 1872.



— 158—

cessful on two occasions in getting his civil rights 
bill adopted as an amendment to the amnesty bill in 
the Senate. But the amnesty bill, on which the civil 
rights bill then depended, failed to get two-thirds 
majority and failed to pass the Senate as thus 
amended. Finally, the Sumner civil rights bill, as 
a separate measure, was amended by deleting the 
reference to schools and churches and was passed by 
the Senate. The amnesty bill then passed. But the 
Sumners bill was not passed by the House.

A brief reference to the debates will emphasize 
that the matter of mixed schools was thoroughly dis­
cussed and that a majority of the Congress recog­
nized that mixed schools were not required by the 
Fourteenth Amendment, and that the majority of 
Congress did not favor Congressional action which 
would attempt to abolish separate schools.

On December 20, 1871, the Senate took up the 
Amnesty bill. Sumner moved to amend it with his 
Civil Rights Bill which provided:

“That all citizens . . . without distinction 
of race . . . are entitled to the equal and im­
partial enjoyment of accommodations, advan­
tages, facilities or privileges furnished by com­
mon carriers . . . innkeepers . . . theaters 
. . . common schools . . . church organiza­
tions . . . cemetery associations . . . and this 
right shall not be denied or abridged on any 
pretence of race . . .”

It further provided that wherever the word 
“white” appeared in a statute with reference to race,

Appendix



— 159—

Appendix

the statute was thereby repealed.06 This amend­
ment was defeated in the Senate 29 to 30.

On January 15, 1872, the amnesty bill was again 
brought up in the Senate and Sumner again offered 
his bill as an amendment.07 He spoke vigorously for 
his amendment including arguments in favor of 
compulsory mixed schools.98 Vickers of Maryland 
and others thought the civil rights bill unconstitu­
tional." Frelinghuysen of New Jersey moved to 
amend by providing “that churches, schools, cem­
eteries . . . exclusively for either the white or col­
ored race, should not be taken from the control of 
those establishing them, but shall remain devoted 
to their use.”100 Sumner accepted the amendment.101 
There were many speeches for the Sumner amend­
ment.102 and many against it.103 Much of the opposi-

96 Annual Cyclopedia 1872 (Appleton), pp. 143-144. See 
also 42nd Cong., 2nd Sess., p. 381. Sumner was reminded 
tnat Congress could not repeal a State law.

7 42nd Cong., 2nd Sess., p. 381. 
sJd. at 381-384; 434; 726; 822.

94 386! others of the same view included Thurman 
q<m,7<0 P' ’ Morrill of Maine, who had been in the
Wii^™gr/eSS Jr?>\730 and APPendix< P- 1) ; Carpenter of 
Wisconsin (p 759) ; D avis of K entucky , who had also been
Snmkhum C??gress (P- 763)- This Court declared the 

bdl ^hlck was enacted in 1875 (the references to 
CiviJ Marches having been deleted) unconstitutional. 

J TRJ 9hts Cases’ 109 U.S. 3 (1883).Id. at 435, 487.
io' l 2nd C°ng-> 2nd Sess., P. 453.

Indian A SK er #  S°uth Carolina <P- 488) i Morton of 
of Texa« P‘ AAV TT?Tagan’ a Reconstruction Republican 

io3 p u-n8  ̂ ’ ^ dson °f Massachusetts (p. 819). 
pendix 9eorP a (P- 492) ; Morrill of Maine (ap-
Kentucky (p ’912)V1S °f Kentucky <P- 763) 5 Stevenson of



— 160—

tion to the bill was centered on the mixed school pro­
vision. For example, Saulsbury of Delaware thought 
it would definitely injure the common schools.10 * * 104 
Thurman of Ohio didn’t think Congress could require 
mixed schools.105 Ferry of Connecticut said,

“With regard to . . . schools and churches, 
I clearly am of the opinion that the Federal Gov­
ernment ought not to interfere.”106

His motion to strike out the reference to churches 
was agreed to.107

On the question of accepting the Sumner amend­
ment to the amnesty bill, the vote in the Senate was 
tied and Vice President Colfax voted in favor of the 
amendment.108 But the amnesty bill as thus amended 
failed to pass on February 9, 1872.109

The matter was again debated in the Senate in 
May, 1872, The Senate took up the amnesty bill 
which had passed the House. Again Sumner 
proposed his Civil Rights Bill as an amendment. 
And again there were extended debates for110 and 
against111 the Sumner amendment.

Appendix

10i 42nd Cong., 2nd Sess., Appendix, p. 7.
105 42nd Cong., 2nd Sess., Appendix, pp. 25-27. See also

Flack, The Adoption of the Fourteenth Amendment, p. 255.
106 42nd Cong., 2nd Sess., p. 893.
107 Id. at 896.
108 Id. at 919.
109 Id. at 928.
110 Edmunds of Vermont (p. 3190).
111 Trumbull (p. 3189) ; Boreman (p. 3195).



- 1 6 1 -

Senator Trumbull of Illinois, who had introduced 
the Civil Rights Act of 1866 and the First Supple­
mental Freedmen’s Bureau Bill in the 39th Con­
gress, said “The right to go to school is not a civil 
right and never was . . . it is a privilege.”112 Sen­
ator Ferry of Connecticut said that in the Northern 
states and in the District of Columbia students 
were separated by race and by sex and given equal 
advantages.113

Again the mixed school provision was a center of 
heated debate. Boreman of West Virginia said that 
the common schools in his State would be severely 
handicapped by forced mixed schools.114 Blair of Mis­
souri thought it would be good policy to separate the 
races.115

Ferry of Connecticut moved to delete the refer­
ence to mixed schools.116 He said:

“. . . in the community where I reside there 
is no objection to mixed schools . . . and if I 
were called upon to vote there, I should vote for 
them. It would be a useless expense to establish 
separate schools for the few colored people in 
that community. But I cannot judge other com­
munities by that community. . . .  I believe 
the Senator’s bill relating to the District of 
Columbia, for instance, would utterly destroy 
the school system in this District. . . .

“Take for instance the State of Ohio where I 
____ understand the law permits the districts to have

112 42nd Cong., 2nd Sess., p. 3189.
113 Id. at 3190.
114 42nd Cong., 2nd Sess., p. 3195.
115 Id. at 3251.
116 Id. at 3256.

Appendix



— 162—

mixed or separated schools . . . and I observe 
a decision of the Supreme Court of Ohio report­
ed in yesterday’s newspaper . . .  It had (there) 
been the assertion . . . that compelling the 
separation of the races into different buildings 
was a violation of the 14th amendment, notwith­
standing that both races . . . enjoyed the same 
or equal privileges. . . . that Court . . .  of 
judges whose political opinions are like those of 
the majority of this body, . . . ‘sustained the 
constitutionality . . .  of the common school 
laws . . . and held that the organization of 
separate schools for colored children is not in 
conflict with the provisions of the fourteenth 
amendment.’ I believe that that decision is good 
law.”117

His amendment was defeated118 although his pro­
posal was later adopted in another amendment, as 
hereinafter related. Senator Blair’s amendment to 
allow each city, county, or state to decide at an elec­
tion whether to have separate schools was defeated.119

Continuing the debate, Senator Casserly of Cal­
ifornia spoke vigorously against mixed schools. He 
referred to the decision of the Massachusetts Court 
in R oberts v. C ity  o f  B oston  upholding the constitu­
tionality of separate schools in the light of the word­
ing of the Massachusetts Bill of Rights which was 
similar to the words of the Fourteenth Amend­
ment.120

117 42nd Cong., 2nd Sess., p. 3257, May 9, 1872. The case 
referred to is State v. McCann, 21 Ohio St. 198.
v. McCann, 21 Ohio St. 198.

118 Id. at 3285, May 9, 1872.
119 Id. at 3258, 3262.
129 Id. at 3261.

Appendix



— 163—

Again the vote on Sumner’s amendments to the 
amnesty bill was tied 28 to 28, and the Vice Pres­
ident voted in its favor. And again the main bill, 
the amnesty bill, was defeated on May 10, 1872.121

On May 21, 1872, the Senate took up the Sumner 
Civil Rights Bill as a separate measure. This time, 
the motion of Senator Carpenter of Wisconsin to 
amend the bill by deleting the reference to public 
schools, churches, cemeteries, and juries was adopt­
ed.122 In this form the Civil Rights Bill passed the 
Senate.123

Mr. James G. Blaine of Maine, later Speaker of 
the House of Representatives, in his book Twenty 
Years of Congress (1886) says this concerning Sen­
ator Sumner, who was absent when his bill passed 
with the reference to schools and churches omitted:

“The Amnesty Bill was immediately taken 
up; while it was pending Mr. Sumner returned 
and warmly denounced the fundamental change 
that had been made in the Civil Rights Bill . . . 
Mr. Sumner’s denunciations of the emasculated 
Civil Rights Bill were extremely severe; but he 
was 'pertinently reminded by Senator Anthony 
of Rhode Island that the bill was all that could, 
be obtained in the Senate at this session, and 
perhaps more than could be enacted into law. 
The senator from Rhode Island had correctly 
estimated the probable action of the House . .  .”  
(p. 514.)

12142nd Cong., 2nd Sess., p. 3270.
122 Id. at 3734, 3735. See also Pierce on Charles Sumner, 

P- 503 and Moorfield Storey on Charles Sumner, p. 405.
123 Id. at 3736.

Appendix



— 164—

4. D ebates on the F ed era l A id  to E ducation  BUI

A  majority of the members of the House, many of 
whom had been in Congress when the Fourteenth 
Amendment was adopted, again showed that they did 
not think the Fourteenth Amendment required mixed 
schools. On January 15, 1872, H. R. 1043 was re­
ported out of committee. It proposed to give finan­
cial aid to education in the States out of receipts of 
public land sales.124 125 The bill was silent as to separate 
or mixed schools, but some members feared that it 
might be construed to require mixed schools.126 So 
on February 8,1872, Mr. Hereford of West Virginia 
offered an amendment providing

“That no moneys belonging to any State . . . 
under this act shall be withheld . . .  for the 
reason that the laws thereof provide for separate 
schools for white and black children or refuse 
to organize a system of mixed schools.”

The amendment was adopted 115 to 81.126 The bill 
as amended passed the House127 and was brought out 
of committee in the Senate.128 But it was not called 
up for debate in the Senate during the session.129 The

Appendix

124 42nd Cong., 2nd Sess., p. 396.
125 Representatives Storm, Kerr, and Harris; id. at 569, 

791, 855.
126 42nd Cong., 2nd Sess., p. 882.
127 Id. at 903.
128 42nd Cong., 3rd Sess., p. 869.
129 This bill was unsuccessfully urged in the 43rd Con­

gress, 1st Session (December 1873), pp. 104, 149.



— 165—

subsequent history of this act (never passed) is set 
out in the footnotes. The policy of Congress as to 
separate schools has not changed.130

5. Sum ner’s A ttem p t to F orce  M ixed  Schools in  
the D istr ict

Appendix

During the same period, Senator Sumner at­
tempted unsuccessfully to pass through the Senate 
a bill to require mixed schools in the District of 
Columbia. Reported from committee in April, 
1872,181 the bill proposed to abolish the separate 
schools and separate school funds created by act of 
July 11, 1862, and subsequent acts. Senator Stock-

. 130 The bill as introduced in the 43rd Congress, was 
silent as to separate schools, leaving that decision for local 
districts. Kasson of Iowa spoke against Federal interfer­
ence in local education (43rd Cong., 1st Sess., p. 468). 
Butler of Tennessee said it wouldn’t interfere (p. 490). 
Cox of New York made a blistering speech against mixed 
schools and said this bill was just an entering wedge (p. 
612). The bill was before the 44th Congress, 1st Session, 
1876 (p. 1767) ; the 45th Congress, 2nd Session, 1878 
(pp. 4119 and 3834) ; and the 46th Congress, 2nd Session, 
1879-80 _(pp. 309, 109, 1495).

The bill as reported from committee of the House of the 
47th Congress _ (1882) contained a provision that funds 
would not be withheld because of the operation of separate 
schools. (47th Cong., 1st Sess., p. 3839). Again contain­
ing authorization for expenditure in separate schools, the 
wli passed the Senate at the 50th Congress (p. 1223), but 
id not pass the House. During the first session of the 

present Congress, the amendment of Senator Lodge to deny 
unds to States having separate schools was defeated. 81st 

L°ng-, 1st Sess., p. 5593, May 3, 1949.
pm?i42-n? C?ng-’ 2nd Sess- P- 2484; S. B. 365 “to secure 
town Pukkc schools of Washington and George-



- 166-

ton of New Jersey argued that what Sumner wanted 
was not equal rights (for the Negro schools in the 
District were equal, he said) but forced interming­
ling of the races. He said:

“I think in the condition the two races are 
before the law . . .  we are bound to legislate 
on all subjects . . . with equality toward them. 
But when you leave the appropriate subjects of 
legislation and tell me . . . (where) my chil­
dren shall go to school, when you attempt really 
an enforced system of education, you are then 
treading on the bounds of that civil liberty 
which our ancestors came to this country to 
establish.”132 133 134

Senator Bayard of Maryland said he saw no neces­
sity for the bill and that he had not been shown that 
the people of the District wanted the bill.183 Senator 
Ferry of Connecticut offered an amendment which 
would have called for an election for the people of 
the District to determine whether or not they wanted 
mixed schools. He thought to force mixed schools 
on them would be tyrannical.184 Senator Edmunds 
of Vermont said that,

“It is a matter of great importance that we 
should determine fairly and squarely whether 
in the District of Columbia, where we have the 
power, that we will exercise it in the protection 
of equal rights. . . .”135

Appendix

132 42nd Cong., 2nd Sess., p. 2540.
133 Id. at 2541.
134 Id. at 3124, 3125. May 7, 1872.
135 Id. at 3123.



— 167—

Appendix

The matter died in the Senate on May 8, 1872, 
clearly indicating again that the Senate did not think 
that the policy of the Fourteenth Amendment re­
quired mixed schools.

D. Action and Debates on the Civil Rights Bill of 
1875, from the Operation of Which Public Schools 

Were Excepted.

While Mr. Sumner had been unsuccessfully urging 
his Civil Rights Bill for many years, a portion of a 
similar bill was enacted in 1875, after the reference 
to public schools was omitted. This is the Act the 
first section of which was declared unconstitutional 
in the Civil R igh ts Cases, 109 U.S. 3. The debates 
and action on these bills (H. R. 796 and S. No. 1) 
clearly show that a majority of the Congress did not 
think that the Fourteenth Amendment required 
mixed schools.

1. In the H ouse o f  R epresen ta tives 43rd Congress, 
1st Session, 1873-1874

As introduced into the House of Representatives 
of the 43rd Congress in December, 1873, the bill (H. 
R. 796) provided:

“That whoever, being . . .  in charge of any 
public inn . . . public amusement . . . stage­
coach, railroad . . . cemetery or other benev­
olent institution, or any public school supported 
• .• • at public expense . . . shall make any 
distinction as to admission or accommodation 
therein, of any citizen of the United States be-



- 168-

cause of race, color . . . shall be fined not less 
than one hundred dollars nor more than five 
thousand dollars . . .”136

The bill was debated at great length; and, in the 
interest of brevity, all of the speeches cannot be re­
ferred to. The mixed school provision was again one 
of the main points of division.

The bill was sponsored by Rep. Butler of Massa­
chusetts. He and others of the Massachusetts del­
egation at first insisted on the mixed school provi­
sion.137 They were joined by Negro representatives 
of the then governments of some of the Southern 
States.138 It was pointed out that mixed schools had 
worked well in Massachusetts. Other representa­
tives of some of the Northern States spoke for the 
bill including the provisions for mixed schools.189

But the bill received strong opposition, particu­
larly the provision requiring mixed schools. Almost 
all of those who spoke against the bill pointed out 
its unconstitutionality. Rep. Hamilton of New Jer­
sey thought it an unauthorized usurpation of the 
Federal Government for it to attempt to regulate the 
schools of New Jersey.140 The Southern representa­
tives (except the Negro representatives and a Re­
publican of Florida, Mr. Purman) were of the opin-

136 43rd Cong., 1st Sess., p. 378, Dec. 19, 1873. See Flack, 
op. cit. supra, pp. 318, 322; 260-264.

137 Id. at 340; Rep. Dawes, p. 342.
138 Rainey of South Carolina, p. 343; Ransier of South 

Carolina, p. 382, 407, 1311; Elliott of South Carolina, pp. 
407-410; Cain of South Carolina, pp. 566, 901; Walls of 
Florida, p. 417.

139 Frye 0f Maine, id. at 375; Lawrence of Ohio, pp. 412- 
415; Monroe of Ohio, p. 414.

140 Id. at 740.

Appendix



— 1 6 9 -

ion that to force mixed schools would cause the aban­
donment or ruin of public schools in their district; 
would deprive poor white citizens, who could not af­
ford private schools, of an education; would deprive 
the Negro of a good public education because white 
support, which furnished practically all the tax 
money, would be withdrawn from the public schools; 
and, in short, would mean the end of public education 
in that region.141

On the question of constitutionality, frequent ref­
erences were made to the Slaughter H ouse Cases 
where the distinction was pointed out between a 
person’s rights (1) as a citizen of the United States, 
and (2) as a citizen of a State. A free school ed­
ucation at the State’s expense was not a right of 
a citizen of the United States,” but a “privilege” 

of a citizen of a State.142

Representative Mills of Texas made a scholarly 
argument as to the meaning of the Fourteenth 
Amendment:143

“It was for the reason given by the committee 
____ ^hat the 14th amendment was adopted, not to

T | fk  and Durham of Kentucky, pp. 342, 406; Harris 
and Whitehead of Virginia, pp, 375, 427; Buckner of Mis- 

Stephens, Blount, and Harris of Georgia, pp. 
ooo’ V Roger Q. Mills and Herndon of Texas, pp. 
cai’i , and Atkins of Tennessee, pp. 414, 453.
L , references are to pages in the Congressional Record,
4 i j  Congress, 1st Session.)
nn loo' ^Herndon of Texas, p. 421; Buckner of Missouri, 
ptU • ’ 429 ’ Atkms of Tennessee, pp. 414, 453; Stevens of 
Virginia p 376’ Dur^am Kentucky, p. 406; Harris of
in Fitgi? S®ss-> PP- 384-386. The speech is noted
t) 261 CK’ 1 A doption  o f  the Fourteenth  Am endm ent,

Appendix



— 170—

enlarge the privileges and immunities already 
conferred, but simply to prohibit the states from 
abridging them as they existed. . . . These 
words have been again and again subjected to 
the most learned critical investigation. They 
have been construed by the judicial . . .  the 
legislative . . . and by the executive depart­
ment, and the interpretation has always been 
the same. If there is any virtue in the rule 
stare decisis . . .  I hold that all the depart­
ments of government should stand decided and 
refuse to go behind the interpretation of these 
words, so universally acknowledged, and dis­
turb the decision when the rights of millions 
hang upon it. . . .

“From the authority of adjudged cases it is 
clear that the privileges and immunities men­
tioned in the fourteenth amendment are only 
such as are conferred by the Constitution itself 
as the supreme law over all . . .

“The States have always exercised the right 
to fix the status of their citizens, and they will 
continue to do so. It is their own unquestioned 
right to make and unmake their constitutions 
and laws for the government of their people; 
to establish universities, colleges, academies, 
and common schools, and govern them accord­
ing to their own pleasure; to prescribe who may 
be admitted to share their bounty and on what 
conditions.

“The great evil this bill has in store for the 
black man is found in the destruction of the 
common schools of the South. His children 
have been enjoying all the benefits of liberal 
education, paid for by the white people of the 
South. . . .

“We all in the South know that the white 
people and black before the war belonged to the

Appendix



- 1 7 1 -

same churches, often had the same pastors; but 
now of their own volition they have separated 
everywhere from the white people, and have 
their own bishops and ministers and churches 
and congregations— all separate from the white 
people. . .

Representative Harris of Virginia said:

“Our constitution, adopted by what was 
known as the Underwood convention, composed 
of Republicans, provided that we should inau­
gurate the free-school system by 1877. But a 
conservative legislature in 1870, at its first 
meeting, inaugurated the separate school sys­
tem. . . . The passage of the civil-rights bill 
. . . would immediately wipe out, or practi­
cally destroy, the public school system of Vir­
ginia.”144

Representative Durham of Kentucky said, “ . . . 
the most objectionable part of this bill is that which 
forces the children of the freedmen into our common 
schools.”145

Numerous amendments were offered to the bill in­
cluding an amendment stating that separate schools 
might be maintained for the races.148 Apparently 
convinced that his bill could not pass, Representa­
tive Butler of Massachusetts moved to recommit his 
bill to Committee to consider the amendments pro-

i« Srd Consr-’lst Sess-’ pp- 376’ 377-3 Id., at 406. These same sentiments were expressed by 
the Representatives. Id. at 415, 419, 421, 427, 429.

Id. at 407.

Appendix



— 172—

posed. He was impressed with the arguments as 
to mixed schools. On this matter he said,

“But there are reasons why I think this ques­
tion of mixed schools should be carefully con­
sidered. The Negroes . . . have never, until 
the last few years, had an opportunity for edu­
cation. . . . Therefore in the Negro schools 
which I established as a military commander 
during the war, I found that while I had plenty 
of school boys with ‘shining morning faces,’ 
there were none ‘creeping unwillingly to school’ 
. . . And I shall recommit the bill . . . because 
I  want time to consider whether upon the whole 
it is just to the negro children to put them into 
mixed schools. . . .

“And therefore I am quite content to con­
sider this question in the light of what on the 
whole is best for the white and colored child be­
fore this matter is again before the House.”147

The above indicates that even General Butler of 
Massachusetts, who was in the 39th Congress which 
adopted the Fourteenth Amendment, did not really 
believe that the Fourteenth Amendment would pro­
hibit separate schools. Otherwise he would not have 
been willing to consider the expediency of the sep­
arate school amendment. The bill was recommitted 
to his Committee on January 7, 1874, and came out 
on February 3, 1875, amended to allow separate 
schools.148

Appendix

147 43rd Cong., 2nd Sess., pp. 455-457.
148 43rd Cong., 2nd Sess., pp. 900, 1010.



— 173—

Appendix

2. In  the Senate, 43rd  Congress, 1st Session

On January 27, 1874, Sumner again introduced 
his Civil Rights Bill into the Senate. The bill passed 
the Senate at this session, but did not pass the House 
of Representatives. The House Bill (H. R. 796) 
which finally passed the House in 1875, after all ref­
erence to schools had been deleted, ultimately passed 
the Senate in that form and became the Civil Rights 
Act of 1875.

The Sumner bill proposed that no citizen of the 
United States should, because of race, be excluded 
from the full and equal enjoyment of any accommo­
dation or facility furnished by any inn keeper, com­
mon carrier, theater, “common schools and other 
public institution of learning . . .” or cemetery 
associations; “provided that private schools, ceme­
teries, and institutions of learning established exclu­
sively for white or colored persons . . . shall re­
main according to the terms of the original establish­
ment.” The bill provided also that no citizen should 
he disqualified for jury service because of race. Sec­
tion 5 provided that “every discrimination against 
any citizen on account of color by the use of the word 
white’ . . .  in any law, statute, ordinance or reg­
ulation, national or State, is hereby repealed and an­
nulled.”149

Senator Edmunds of Vermont moved that the bill 
be sent to committee because “in some respects” the 
hill was too “strong.” Senator Stewart of Nevada 
agreed. Sumner urged immediate passage, but the

149 43rd Cong., 1st Sess., p. 945.



- 1 7 4 -

bill was sent to committee. In March, 1874, Senator 
Sumner died.150 On April 29, 1874, Senator Frel- 
inghuysen of New Jersey reported Sumner’s bill 
from Committee. The Committee draft of the bill 
differed from Sumner’s draft. The original bill pro­
vided that “no citizen should be excluded” from com­
mon schools, et cerera, and purported to repeal all 
state laws containing the word “white” referring to 
race. The Committee’s bill provided that “all per­
sons . . .  shall be entitled to full and equal enjoyment 
of accommodations . . . and privileges of inns, pub­
lic conveyances, . . . theaters . . . common schools 
. . . cemeteries . . . subject only to the conditions 
and limitations established by law, and applicable 
alike to citizens of every race, . . .” It omitted the 
reference to private schools and omitted the section 
purporting to repeal State laws.151 i

Asked if it was a denial of equal rights to have 
separate schools, Senator Frelinghuysen of New 
Jersey discussed two cases: S tate v. M cCann  by the 
Supreme Court of Ohio holding separate schools con­
stitutional under the then recently adopted Four­
teenth Amendment, and Clark v. B oard  o f  Directors, 
by the Iowa Court striking down separate schools 
under the provisions of the Iow a  Constitution (not 
the Federal Constitution). He pointed out that the 
cases were distinguishable because of different con­
stitutional provisions of the States. He further con­
ceded that it was not a privilege of a “citizen of the 
United States” to have an education at a States

Appendix

150 Blaine, Twenty Years in Congress, p. 544.
151 43rd Cong., 1st Sess., p. 3451.



- 1 7 5 -

expense. He nevertheless said the object of this bill 
was to prohibit the exclusion of anyone from a school 
because of race.152

The bill was taken up again in May, 1874 and 
passed the Senate after an all-night session. There 
were many speeches for the bill153 and against it, par­
ticularly on the question of mixed schools.154

Senator Stockton of New Jersey argued that the 
regulation of public schools was a matter of State 
concern only. He said the Legislature of New Jersey 
would not pass a compulsory mixed school law: 
“They know their constituents do not desire it. 
They know it is not right.” He said that Negroes 
were entitled to “equal” rights; but “equal” rights 
did not mean “the same” facilities. He referred 
to the equal, separate schools in the District of 
Columbia, saying that Negroes and whites had equal 
rights when they had equal separate schools. He 
said the Fourteenth Amendment did not purport to 
tell a local community whether it should organize a 
school district, pay taxes to support it, and whether 
it would divide its students by age, sex, or race.155

152 43rd Cong., 1st Sess., p. 3452.
.lo3 Alcorn of Mississippi (except the provision for forced 

mixed schools), Appendix, p. 305; Pease of Mississippi, p. 
4153; Edmunds of Vermont, p. 4171; Boutwell of Massa- 
c*Fs®tts (except that he wanted to except separate white 
and Negro schools previously established), p. 4169; Freling- 
nuysen of New Jersey, p. 3452.

154 Stockton of New Jersey, pp. 4117, 4144-4146; Bogy of 
fflissoun, Appendix, pp. 318-323; Saulsbury of Delaware, 
P- 4159; Sargent of California, pp. 4167, 4175; Stewart of 

evada, p. 4167; Gordon of Georgia, p. 4169; Johnston of 
4114; Cooper of Tennessee, p. 4155.

43rd Cong., 1st Sess., pp. 4144-4146. This argument 
referred to in Flack, The Adoption of the Fourteenth

Amendment, p. 268.

Appendix



- 1 7 6 -

Senator Howe of Wisconsin thought the first and 
fifth sections of the Fourteenth Amendment were 
broad enough to support Congressional legislation. 
He said, “Let justice be done though the common 
schools and the very heavens fall.”156

Senator Alcorn of Mississippi had a novel ap­
proach. He said that the Negroes were in control 
of his State and so “self protection, if I had no higher 
consideration, would move me to support . . . this 
bill . . .  I declare myself in favor of that policy 
which the colored man declares as necessary.” But 
as to mixed schools he said,

“You say that you do not want the schools 
mixed. Well, I am not in favor of mixing them; 
and I consider that this bill does not mix them. 
. . . How is it in my State? There . . .  the 
colored people control; they make the laws; they 
levy the taxes; they appoint the school board. 
The whole machinery is in their hands; yet there 
is not a mixed school in the State . . . and we 
have civil rights there. Why is it? Simply be­
cause the colored people do not desire it; be­
cause they believe the interests of both races 
will be promoted by keeping the schools sep­
arate.”157

Senator Saulsbury of Delaware, who had been a 
Senator in the 39th Congress which proposed the 
Fourteenth Amendment, said that the Fourteenth 
Amendment did not remove the State’s police power

Appendix

156 43rd Cong., 1st Sess., pp. 4147-4152.
157 Id. at Appendix, p. 305.



— 177—

Appendix

to have separate schools. He read from the opinion 
of Mr. Justice Field of this Court in B artem eyer v. 
Iow a:

“No one has ever pretended . . . that the 
14th amendment interferes in any respect with 
the police power of the State. Certainly no one 
who desires to give to that amendment its legit­
imate operation has ever asserted for it any 
such effect. It was not adopted for any such 
purpose. The judges who dissented from the 
opinion of the majority of the Court in the 
Slaughter-House Case never contended for any 
such position. But on the contrary, they recog­
nized the power of the State in its fullest ex­
tent. . . ”158

He referred to separate schools in Maryland and 
Delaware as being best for both races, and said that 
to force mixed schools would destroy the common 
schools. In fact, he said, “ . . . I say that, sooner 
than see mixed schools in the State of Delaware, I 
would be glad to see the Legislature destroy the com­
mon school system in the State.”159

Senator Stewart of Nevada, who was also in the 
39th Congress, said he thought Congress had the 
power to legislate. But it is evident that he did not 
believe the Fourteenth Amendment required mixed 
schools because he argued against that provision:

“If by voting for mixed schools I thought I 
could accomplish that purpose (educating the 
Negro) . . . I would vote for them; but I am

158 43rd Cong., 1st Sess., p. 4159, May 22, 1874; 18 Wall. 
129, 138 (1873).

169 Id. at 4157-4162.



Appendix

— 178—

afraid they would not have that precise effect. 
Consequently I think it ought to be left optional 
to have schools mixed or separate as the 
people themselves desire. I do not think at all 
events we should take the step to compel mixed 
schools.”

He said he thought the Constitution should be 
amended to require the States to maintain common 
schools (and he had offered the amendment twice). 
“But while it is left to the States to have systems of 
free schools or not, and while the several States are 
wavering in the balance . . .  I say it is endanger­
ing, in many of the States the education of the pres­
ent generation . . .”160

Senator Stewart of Nevada said that the Senator 
from Massachusetts (Boutwell) was thinking of 
the 800,000 Negro votes, and he rejoiced with him 
that the Republican party had them. But he said, 
“No political consideration can make me vote in a 
manner which I fear will deny to any child the right 
to be educated.”161

Senator Sargent of California said that the Four­
teenth Amendment did not prohibit mixed schools 
any more than it prohibited the separation of boys 
and girls.” 162

160 43rd Cong., 1st Sess., p. 4167.
161 Id. at 4169. Boutwell of Massachusetts foresaw the 

Negro voting Republican out of gratitude, p. 4115. Flack, 
in his Adoption of the Fourteenth Amendment', observed 
that the “prime motive of a majority of those who voted 
for the bill was political. . . .” p. 271.

162 Id. at 4172, 4175.



— 179—

The advocates of the bill were successful in de­
feating amendments to the bill. Senator Boutwell 
of Massachusetts, who had been in the 39th Congress, 
wanted to amend the bill to except common schools 
or other institutions of learning theretofore estab­
lished from the operation of the bill.163 Senator 
Thurman of Ohio wanted the $500 fine payable to 
the person whose civil rights were offended.164 Sen­
ator Gordon of Georgia moved to omit the reference 
to common schools.165 (It will be remembered that 
the bill as finally enacted at the next session did 
delete the reference to common schools.)166 Other 
amendments as to the enforcement of the Act, not 
material here, were also rejected.167 The bill was 
passed by the Senate on May 22, 1874.168

163 43rd Cong., 1st Sess., p. 4115. His amendment would 
make the bill read: “And also of every common school . . . 
that may hereafter be endowed by any State or supported 
in whole or in part by public taxation.” His amendment 
was defeated, p. 4169. He was particularly anxious about 
schools of a private nature which were supported in part by 
the State.

165 p 4 1 7 0

166 43rd Cong., 2nd Sess., pp. 1010, 1011 in the House; 
id. at 1870 in the Senate.

187 43rd Cong., 1st Sess., pp. 4170-4171; 4175.
168Id. at 4176. As passed, Section 1 of the bill read: 

“That all citizens and other persons within the jurisdiction 
of the United States shall be entitled to the full and equal 
enjoyment of the accommodations, advantages, facilities, 
and privileges of inns, public conveyances on land or water, 
theaters, and other places of public amusement; and also of 
common schools and public institutions of learning or benev­
olence supported, in whole or in part, by general taxation, 
and of cemeteries so supported, and also the institutions 
known as agricultural colleges endowed by the United 
States, subject only to the conditions and limitations estab­
lished by law, and applicable alike to citizens of every race 
and color, regardless of any previous condition of servi­
tude.” Section 4 of the bill prohibited exclusion from jury 
service because of race.

Appendix



— 180—

3. In  the If 3rd C ongress, 2nd Session, 1875

The House of Representatives had returned H. R. 
796 to committee at the close of the first session of 
the 43rd Congress. On February 1,1875, Mr. Butler 
of Massachusetts was successful in getting the bill 
considered again.169 The bill as reported by Commit­
tee was amended specifically authorizing separate 
schools.170 Apparently the Committee, of which But­
ler was chairman, felt that Congress should affirma­
tively make separate schools an exception to the Civil 
Rights Act. Others, as will be shown in the amend­
ment proposed by White of Alabama, thought the 
bill should go further and also affirmatively allow, 
separate accommodations in inns and on public trans­
portation. Others thought (Rep. Cessna) that the 
wording of the Senate’s bill by Mr. Sumner, requir­
ing mixed schools, should be substituted. Still others, 
(Kellogg) thought that the Congress should enact 
the bill as to its other, provisions and just not legis­
late as to schools, thus leaving the matter to the in­
dividual States. This latter view was ultimately 
adopted.

Appendix

169 The rules of the House were amended in order to get 
the bill brought up. 43rd Cong., 2nd Sess., pp. 900-902. 
Butler had reported the bill on December 16, 1874, but it 
was again recommitted (id. at 116). On January 25, 1875, 
he attempted to bring the bill up again but failed to get the 
necessary two-thirds vote (id. at 704).

170 Flack, The Adoption of the Fourteenth Amendment at 
page 272 says that the bill was almost identical with the 
one passed by the Senate. In most respects, his statement 
is correct. But it is erroneous as to the school provision.



— 181—

The Committee after the reference to common 
schools in the bill added the following:

“Provided, That if any State or the proper 
authorities in any State, having the control of 
common schools or other public institutions of 
learning aforesaid, shall establish and maintain 
separate schools and institutions, giving equal 
educational advantages in all respects for dif­
ferent classes of persons entitled to attend such 
schools and institutions, such schools and insti­
tutions shall be a sufficient compliance with the 
provisions of this section so far as they relate to 
schools and institutions of learning.”171

The following amendments were offered (and they 
will hereafter be referred to by the name of the 
Representative proposing the amendment):

1. W h ite  of Alabama: to add the following 
proviso:

“Provided that nothing in this act shall 
be construed to require mixed accommoda­
tions, (by sitting together) facilities, and 
privileges at inns, in public conveyances 
. . . theaters, . . . for persons of different 
race or color, nor to prohibit separate ac­
commodations, facilities and privileges at 
inns, in public conveyances . . . theaters 
. . . And provided further that nothing in 
this act shall be construed to require mixed 
common schools . . .”172 *

2. Cessna  of Pennsylvania moved to substitute 
the words of the Senate bill.178

17143rd Cong., 2nd Sess., p. 1010.
172 Id. at 939.
1,3 Id. at 938; defeated p. 1011.



— 182—

Appendix

3. K ellogg  of Connecticut moved to strike out 
the words of the original bill as to schools 
and also the proviso added by the House 
Judiciary Committee; i. e., to pass the bill 

omitting all reference to schools.17*

Representative Finck of Ohio, who had been in 
the 39th Congress which proposed the Fourteenth 
Amendment, cited with approval the then recent de­
cision of the Ohio Supreme Court in S tate v. McCann, 
21 Ohio St. 198. He said it was rendered by “ a full 
court . . . every member of who was a prominent 
member of the republican party . . .  in which it 
was held that it was no infringement of the 14th 
article to the Constitution to prohibit Negro children 
from attending the same school with white chil­
dren.”174 175 He also discussed the Slaughter House 
Cases.

There were again many speeches on the bill, par­
ticularly with reference to the school clauses. In 
the interest of brevity, they cannot be summarized 
here. Some favored the broad Senate version pro­
posed by the C essna  amendment.176 Others were

174 43rd Cong., 2nd Sess., p. 1010.
175 Id. at 948. Finck thought the whole bill unconstitu­

tional and an unwarranted interference with the powers of 
the State. His speech is referred to in Flack, pp. 272-273.

176 Rainey, Negro Representative of South Carolina, p. 
959; Hoar of New York, p. 979; Roberts of New York, p. 
980; Lewis, a Republican from Tennessee, p. 998; Burrows 
of Michigan, p. 1000; Phillips of Kansas, p. 1003; Shanks 
of Indiana, p. 1003; Garfield of Ohio, p. 1004; Williams of 
Wisconsin, p. 1002; Lynch, Negro Representative from 
Mississippi, p. 945. (All references are to Congressional 
Record, 43rd Cong., 2nd Sess.)



— 183—

against the whole bill but favored the W hite amend­
ment to allow separate accommodations in carriers, 
inns, schools; and many were against compulsory 
mixed schools.177

Cain, a Negro Representative from South Car­
olina, suggested that for the sake of peace within 
the Republican Party, they might accept the school 
clause of the Committee.178 Blount of Georgia re­
minded the House that the majority of the House 
was made up of “lame ducks” and that the country 
had spoken against the Civil Rights measure at the 
recent elections.179 Phelps, a Republican of New Jer­
sey, also reminded the House of the recent Repub­
lican defeat at the polls. He said:

“To pass this bill, we defy the opinion of the 
people of the United States recently and em­
phatically declared; for if there was one issue 
on which we went to the country it was this . . .  
Upon this issue the two great parties went to 
judgment. And the people last fall declared 
their judgment, and w ith  a, thunder that shook 
one hundred m em bers out o f  their s e a ts ”

He spoke against forcing mixed schools on the 
South.180 Stanard of Missouri said his State had sep-

17‘ Storm of Pennsylvania, pp. 950-952; Lamar and Hun- 
t®r of Virginia, id. at Appendix, pp. 119 et seq.; Whitehead 
ot Virginia, pp. 952-957; Smith of Virginia, p. 960 and Ap­
pendix p. 156; Blount of Georgia, p. 977; Phelps of New 
Jersey, p. 1001; Finck of Ohio, p. 948; Southard of Ohio, 
P-996; Brown of Kentucky, p. 938; Small of New Hamp­shire, p. 981.

178 43rd Cong., 2nd Sess., p. 957.
178 Id. at 977.
180 Id. at 1002.

Appendix



— 1 84 —

Appendix

arate schools, and that they were necessary for the 
education of both races.181 Chittenden of New York 
thought the bill unduly vexatious to both races.182 
Small of New Hampshire said he didn’t think the 
Senate bill required mixed schools “only that they 
shall have equal privileges.”183

Since the K ellogg  amendment was adopted, his ex­
planation of his amendment to the House is per­
tinent :

“The amendment I have proposed is to strike 
out of the House bill reported by the Committee 
on the Judiciary all that part which relates to 
schools; and I do it, Mr. Speaker, in the interest 
of education, and especially in the interest of 
the education of the colored children of the 
Southern States. . . . The proviso to the first 
section is one that makes a discrimination as to 
classes of persons attending public schools; and 
I do not wish to make any such provision in an 
act of Congress.

“But upon this school question we should be 
careful that we do not inflict upon the several 
States of the Union an injury that we ought to 
avoid. A school system in most of the Southern 
States has been established since the war of the 
rebellion, by which the colored children of the 
South have the advantages of an education that 
they never could have before that time. I be­
lieve, from all the information I can obtain, 
that you will destroy the schools in many of 
the Southern States if you insist upon this pro­
vision of the bill. You will destroy the work of

181 43rd Cong., 2nd Sess., p. 981.
182 Id, at 982.
183 Id, at 981.



Appendix 

— 185—

the past ten years and leave them to the mercy 
of the unfriendly legislation of the States where 
the party opposed to this bill is in power. And 
besides, this matter of schools is one of the sub­
jects that must be recognized and controlled by 
State legislation. The States establish schools, 
raise taxes for that purpose, and they are also 
aided by private benefactions; and they have a 
right to expend the money, so raised, in their 
own way. . . .” 43rd Cong., 2nd Sess., p. 997.

After adopting the amendment of Mr. Kellogg of 
Connecticut184 the House passed the bill on February 
4, 1875.185 The bill then went to the Senate.

The House Bill (H. R. 796) was taken up by the 
Senate on February 26, 1875. There were few 
speeches, and most of the discussion was with refer­
ence to the jury service provision.186 There was some 
debate on the constitutionality of the bill.187 After 
this short debate, the bill was passed the same day.188 
It was signed by President Grant on March 1 ,1875.189

184 43rd Cong., 2nd Sess., p. 1010.
185 Id. at 1011.
186 Thurman of Ohio moved to amend the bill to limit its 

jury provisions to Federal Courts (id. at 1791) ; his amend­
ment was defeated, p. 1867.

187 That it was unconstitutional: Carpenter of Wisconsin, 
p. 1861; Dennis of Maryland, p. 1865; Thurman of Ohio, 
p. 1791. That it was constitutional: Boutwell of Massa­
chusetts, p. 1792; Morton of Indiana, p. 1794.

188 Id., at 1870.
189 Id. at 2013.



— 186—

E. The Present A cts of Congress Providing for and 
Recognizing Separate Schools

1. Congress Has Continued to Maintain Separate 
Schools in the District of Columbia.

In 1874, as part of the Revised Statutes for the 
District of Columbia, Congress provided that:

“It shall be the duty of the school board to 
provide suitable and convenient . . . schools 
for colored children . . . and to endeavor to 
promote a thorough, equitable, and practicable 
education of colored children . . .  of the dis­
trict.

“Any white resident shall be privileged to 
place his . . . child . . .  at any one of the 
schools provided for . . . white children . . . 
and any colored resident shall have the same 
right with respect to colored schools.”190

The same Act in Section 294 provided that “there 
shall be a board of trustees of schools for colored 
children in the cities of Washington and Georgetown 
. . .” and Section 304 stated that “there shall be a 
superintendent of schools for colored children. . .

190 Sections 281 and 282 of Revised Statutes Relating to 
the District of Columbia, U. S. Gov. Printing Office 1875. 
There have been other changes, not relevant here, in the 
number and composition of the school boards or Commis­
sioners in charge of the schools. See Ingle, The Negro in 
the District of Columbia, Johns Hopkins University Studies, 
11th Series (1893), pp. 29 et seq,, and the opinion of the Cir­
cuit Court of Appeals for the District of Columbia in Carr 
v. Corning, decided February 14, 1950 (unreported yet). 
The major Acts are: 20 Stat. 107 (1878); 22 Stat. 142 
(1882) ; 28 Stat. 693 (1895) ; 34 Stat. 316 (1906).

Appendix



— 187—

The Congressional Acts presently in force include 
the following provisions:

“It shall be the duty of the Board of Educa­
tion to provide suitable and convenient . . . 
schools for colored children . .

“Any white resident shall be privileged to 
place his or her child . . .  at any one of the 
schools provided for the education of white chil­
dren . . . and any colored resident shall have 
the same rights with respect to colored schools.”

“It shall be the duty of the proper authorities 
of the district to set apart . . . from the whole 
fund received . . . such a proportionate part 
of all moneys received . . .  as the colored chil­
dren . . . bear to the whole number of children, 
white and colored . . .”191

“It is the duty of the Board of Education to 
provide suitable rooms and teachers for such a 
number of schools . . .  as, in its opinion, will 
best accommodate the colored children of the 
District of Columbia.”192

2. G rants to S eparate Land-G rant Colleges

The present acts of Congress193 recognize the valid­
ity of separate colleges for white and Negro students 
by providing funds for separate land-grant agricul­
tural and mechanical colleges (including Texas A. 
& M. College for white students and Prairie View

191 District of Columbia Code (1940 ed.), Sec. 31-1110,
mi, m2.

192 D. C. Code 31-1113; Sec. 31-109 provides for one white 
and one colored first assistant superintendents for the re­
spective schools.

193 7 U.S.C., § 323.

Appendix



— 188—

A. & M. College for Negro students of Texas). The 
history of this act (known as the Morrill Act) is per­
tinent, particularly in view of the fact that Senator 
Morrill of Vermont, after whom the bill is named, 
had not only been a member of the 39th Congress but 
a Republican member of the Committee of Fifteen 
which proposed the Fourteenth Amendment.

Land-grant colleges were established in the States 
to take advantage of an Act of July 2, 1862, which 
granted certain lands to the States, the proceeds 
from the sale of which were to be applied to agri­
cultural and industrial education.194 The original 
act provided that those States which were “in rebel­
lion or insurrection against the government of the 
United States” were to receive no benefits.

On March 25, 1890, Senator Morrill of Vermont 
introduced a bill to apply the proceeds of the sale of 
public lands to public education and the support of 
the land-grant colleges.195

As reported from the Senate Committee, Section 
2 of the bill read in part:

“P rovided , That no money shall be paid out 
from the college fund arising under this act to 
any State or Territory for the support and 
maintenance of a college where a distinction of 
race or color is made in the admission of stu­
dents, but the establishment and maintenance

1Si 12 Stat. 503 (1862) ; this act was supplemented in 1870 
to establish “agricultural experimental stations” at colleges 
established under the original act. 24 Stat. 440 (1887).

195 51st Cong., 1st Sess., p. 2595. These colleges were 
those teaching “Agriculture and the Mechanic Arts” the 
same as those established under the Act of 1862.

Appendix



— 189—

of such colleges separately for white and colored 
students shall be held to be a compliance with 
the provisions of this act.”196

Objection was made that the bill attempted to in­
terfere with the internal operation of the land-grant 
colleges, which, it was argued, is a State function.197 
This was the principal objection to the bill and most 
of the debate was confined to this point and to the 
amount of money to be granted.

Senator Pugh of Alabama offered the following 
amendment to be added to Section 2:

“ P rovided  fu rth er , That the Legislature of 
any State in which institutions of like character 
have been established and are now being aided 
by such State out of its own revenue for the 
education of colored students in agricultural or 
the mechanical arts, whether styled colleges or 
not, and whether they have or not received any 
money heretofore under the act to which this is 
an amendment, may appropriate any portion of 
the fund received under this bill to such insti­
tutions so established and aided by such State 
as a compliance with the provision in reference 
to separate colleges for white and colored stu­
dents.”198

190 51st Cong., 1st Sess., p. 6085. A committee amend­
ment deleted the words “from the college fund arising.” 
A substitute bill had previously been considered. Id. at 
4003 and 6083.

197 51st Cong., 1st Sess., pp. 6332-6336. Morgan of Ala­
bama, Reagan of Texas, Hawley of Connecticut, and Plumb 
of Kansas indicated vigorously their belief in this prop­
osition.

108 51st Cong., 1st Sess., p. 6431. A similar amendment 
had been proposed by Senator Hoar of Massachusetts. Id. 
at 6345.

Appendix



— 190—

The purpose of this amendment was, it was stated, 
to overcome a difficulty created by the Act as reported 
from the committee in that it provided that only one 
college could be benefited, thus prohibiting benefits 
to the second college in those States which had one 
for Negro students and one for white students.199

Senator Morrill offered to accept the proposed 
amendment.200 The debate on the amendment of­
fered by Senator Pugh was concerned primarily 
with the determination of an equitable distribution 
of the funds within the States and an apprehension 
that perhaps the fund might be dissipated by the es­
tablishment of too many schools. Senator Hoar of 
Massachusetts, who had been outspoken in favor of 
the civil rights of Negroes as a member of the House 
in previous Congresses, stated that

“ . . . in" the institution in my State colored 
and white youth study together . . . wherever 
colored and white youth do not study together 
the bill should secure equal provision for col­
ored youth. . . .”201

Senator Hawley of Connecticut stated:

“I will not object to the provision . . . which 
forbids any distinction of race or color . . .  but 
allows the establishment and maintenance of 
such colleges separately for white and colored 
students. . . ”202

Appendix

199 51st Cong., 1st Sess., p. 6344.
290 Id. at 6341.
201 Id. at 6345.
202 Id. at 6346.



— 1 9 1 -

Appendix

Senator Ingalls of Kansas, after remarking that 
his State had only one school, stated, with reference 
to the Southern States, that

“I believe that it is inappropriate and im­
proper, in various ways detrimental to the in­
terests of both races, that coeducation should be 
conducted.”203

As a compromise the following was offered in lieu 
of the amendment of Senator Pugh of Alabama:

“P rovided  fu rth er , That in any State in which 
there has been one college established in pur­
suance of the act of July 2, 1862, and also in 
which an educational institution of like char­
acter has been established and is now aided by 
such State from its own revenue for the educa­
tion of colored students in agriculture and the 
mechanic arts, however named or styled, or 
whether or not it has recevied money heretofore 
under the act to which this act is an amendment, 
the Legislature of such State may propose and 
report to the Secretary of the Interior a just 
and equitable division of the fund to be received 
under this act between one college for white 
students and one institution for colored stu­
dents established as aforesaid, which shall be 
divided into two parts and paid accordingly. 
And thereupon such institution for colored stu­
dents shall be entitled to the benefits of this act 
and subject to its provisions as much as it would 
have been included under the act of 1862; and 
the fulfillment of the foregoing provisions shall

203 51st Cong., 1st Sess., p. 6349.



Appendix

— 192—

be taken as a compliance with the provision in 
reference to separate colleges for white and col­
ored students.”204

The amendment was accepted205 and the bill was 
passed by the Senate containing both the amendment 
and the original provision with regard to separate 
schools for Negroes.206

Thus, as it then passed in the Senate (and as it 
reads today), Senator Morrill’s bill provided:

“ Provided , That no money shall be paid out 
under this act to any State or Territory for the 
support and maintenance of a college where a 
distinction of race or color is made in the ad­
mission of students, but the establishment and 
maintenance of such colleges separately for 
white and colored students shall be held to be a 
compliance with the provisions of this act. . . . 
P rovided , That in any State in which there has 
been one college established in pursuance of the 
act of July 2, 1862, and also in which an educa­
tional institution of like character has been es­
tablished, or may be hereafter established, and 
is now aided by such State from its own rev­
enue, for the education of colored students in 
agriculture and the mechanic arts . . .  the 
Legislature of such State may propose and re­
port to the Secretary of the Interior a just and 
equitable division of the fund to be received 
under this act between one college for white 
students and one institution for colored stu-

204 51st Cong., 1st Sess., p. 6369, Section 1.
205 Id. at 6370.
206 Id. at 6372.



- 1 9 3 -

dents . . . and the fulfillment of the foregoing 
provisions shall be taken as a compliance with 
the provision in reference to separate colleges 
for white and colored students.”207

Passage of the bill by the House was completed 
with no debate on the provision allowing donations 
to separate schools on August 19, 1890.208 The Sen­
ate concurred in the House amendment to that part 
of the bill which named the type of instruction to be 
given.209 The bill was signed by the President on 
August 30, 1890.210

Thus, by virtue of a bill introduced by a Senator 
who had been a member of the committee which pro­
posed the Fourteenth Amendment, the 51st Con­
gress, by making appropriations to separate schools, 
interpreted the Fourteenth Amendment and the civil 
rights legislation as not prohibiting separate schools 
for white and Negro students.

3. Grants fro m  N ational School Lunch A ct to 
S eparate Schools

The present National School Lunch Program Acts 
recognize separate schools and authorize payments 
to the separate schools. The act provides in part:

“. . . If a State maintains separate schools 
for minority and for majority races, no funds

207 51st Cong., 1st Sess., p. 8828.
208 Id. at 8839. . The bill had been referred to the Com­

mittee on Education, reported favorably, and debated in 
the House. Id. at 6464, 7228, 8828.

209 Id. at 8874.
210 Id. at 9388; 26 Stat. 417 (1890).

Appendix



— 194—

made available pursuant to this chapter shall 
be paid or disbursed to it unless a just and 
equitable distribution is made within the State, 
for the benefit of such minority races, of funds 
paid to it under this chapter.”211

Appendix

II. CONSTRUCTION OF THE FOURTEENTH AMEND­
MENT BY THE STATE LEGISLATURES

An examination of the contemporaneous Acts of 
the Legislatures of the States will show that the 
Legislatures did not construe the Fourteenth Amend­
ment, which was proposed in 1866 and became effec­
tive in 1868, to abolish the police power of the States 
to provide equal education for their white and Negro 
students in separate institutions.

In addition to the Acts of Congress providing sep­
arate schools in the District of Columbia, and the 
Acts of the legislatures of the 17 Southern States 
which still require separate schools,212 the Legisla­
tures of the Northern States considered that they 
had the power to legislate separate or mixed schools. 
The acts of these States which were represented in 
the 39th Congress when the resolution submitting 
the Fourteenth Amendment was adopted will be 
briefly set out:

California.— In 1869, almost immediately after the 
adoption of the Fourteenth Amendment in 1868, a 
statute was enacted which provided for the educa-

211 60 Stat. 233, 42 l|.S.C., § 1760(c) (1946).
212 These Acts are set out in the Appendix of the Amicus 

Curiae brief of the Southern States.



— 195—

tion of “children of African descent, and Indian chil­
dren” in separate schools.213 In 1872 the law pro­
vided that the schools must be open to all “white 
children between five and twenty-one years of age,” 
and'the above law of 1869 was codified.214

Delaware.—In 1857 the school committee of each 
district was delegated the power to provide for 
schools “free to all white children of the district.”215 
Since that time separate schools for white and Negro 
students have been provided by the Constitution and 
statutes.216 217

Indiana.— The joint resolution proposing the Four­
teenth Amendment was ratified by Indiana in 
1867. In 1869, after the adoption of the Fourteenth 
Amendment, the Legislature enacted a law provid­
ing that the trustees “shall organize the colored chil­
dren into separate schools.”211 This statute was re­
enacted with some changes in 1877.218

Kansas.— The Fourteenth Amendment was ratified 
by Kansas in 1867. By a statute of 1868, the boards 
of education in cities of the first class were given 
the power to establish separate schools for white and

213 Cal. Laws, 1869-70, c. 145, Sec. 56, p. 839.
214 Cal. Political Code, 1872, Secs. 1662, 1669.
215 Del. Rev. Stat., c. 42, Sec. 11(3), p. 207 (1852).
216 Del. Const., Art. X, Sec. 2 (1897) ; Del. Laws 1881, c. 

362, p. 385; Del. Laws 1889, c. 540, p. 651; Del. Rev. Stat., 
c. 66, p. 341 (1852 as amended 1893).

217 Ind. Laws 1869, p. 41.
218 Ind. Laws 1877, p. 124.

Appendix



- 1 9 6 -

Negro children.219 This statute was amended in 1879 
and 1905 but the provisions relating to separate 
schools were reenacted each time.220

Appendix

Kentucky.— Several statutes providing for separate 
schools in the cities were enacted in 1871 and 1872.221 
This policy was continued when the public school 
systems were established.222 A constitutional provi­
sion in 1891 and a statute covering the educational 
system of the entire State in 1892 both provide for 
separate schools.223

Maryland.— A statute providing finances for sep­
arate schools was passed in 1870.224 Subsequent stat­
utes carried forward this policy of separation in ed­
ucation.225

Missouri.— A provision in the Constitution of 1865 
required separate schools for “children of African 
descent.”226 With this provision in the Constitution 
the Fourteenth Amendment was ratified by Missouri 
in 1867. The Constitution of 1875 contained a sim-

219 Kan. Laws 1868, c. 18, Sec. 75, p. 146.
220 Kan. Laws 1879, c. 81, Sec. 1, p. 163; Kan. Laws 1905, 

c. 414, Sec. 1, p. 676.
2211 Ky. Laws 1871-72, c. 594, Sec. 10, p. 62; 2 Ky. Laws 

1871-72, c. 112, p. 194; 2 Ky. Laws 1871-72, c. 520, Sec. 8, 
p. 598.

222 Ky. Laws 1879, c. 894, p. 273; Ky. Laws 1879, c. 377, 
Sec. 9, p. 340.

223 Ky. Const., Sec. 187 (1891) ; Ky. Laws 1891-92-93, c. 
260, Art. XIV, p. 260.

224 Md. Laws 1870, c. 18, p. 555.
225 Md. Laws 1872, c. 18, p. 650; Md. Laws 1874, c. 463, 

p. 690; 2 Md. Rev. Stat., c. 18, Secs. 124-127 (1904).
226 Mo. Const., Art. IX, Sec. 2 (1865).



— 197—

ilar provision for “separate free schools” for Ne­
groes.227 Similarly the statutes provided for sep­
arate schools and the procedure for their operation.228

New Jersey.— The Fourteenth Amendment was 
there ratified in 1866. In 1881 a statute was enacted 
that “no child . . . shall be excluded from any pub­
lic school . . .  on account of . . . color.”229 An in­
dustrial school for Negroes was established in 1895, 
and it remains in operation.230 Separate schools were 
in existence231 until they were specifically prohibited 
by a provision in the new Constitution in 1949.

New York.— In 1864, the school boards were em­
powered to establish separate schools for “youth of 
African descent.”232 The Fourteenth Amendment 
was there ratified in 1867. In 1894, additional legis­
lation was passed providing for separate schools for 
Negroes.283

Ohio.— The law in 1848 and 1849 provided for sep­
arate schools for Negroes.234 Ratification of the Four­
teenth Amendment was there completed in 1867. In

227 Mo. Const., Art. XI, Sec. 3 (1875).
228 Mo. Laws 1874, Sec. 74, p. 164; 2 Mo. Rev. Stat., c. 

150, Sec. 7052 (1879) ; 2 Mo. Rev. Stat., c. 143, Sec. 8002 
(1889) ; 2 Mo. Rev. Stat., c. 154, Sec. 9774 (1899) ; 2 Mo. 
Rev. Stat., c. 106, Sec. 10793 (1909).

229 N. J. Laws 1881, c. 149, p. 186.
230 3 N. J. Gen. Stats., Schools, Secs. 315-320, p. 3073 

(1709-1895) ; N. J. Laws 1904, c. 1, Secs. 201-204, p. 76.
231 Murray, Negro Handbook, p. 132 (1949).
232 N. Y. Laws 1864, Title 10, p. 1281.
233 2 N. Y. Laws 1894, Art. 11, p. 1289.
234 Ohio Laws 1847-8, p. 81; Ohio Laws 1848-9, p. 17.

Appendix



— 198—

Appendix

1878 a statute provided that the boards of education 
might “organize separate schools for colored chil­
dren.”235 Similarly in 1880 the power to establish 
separate schools was again legislated.236 237

West Virginia.—In 1 8 6 5  the Legislature provided 
for separate schools.287 In 1 8 6 7  the Fourteenth 
Amendment was ratified. In 1871  the Legislature 
provided that “white and colored persons shall not 
be taught in the same school.”238 239 This mandate was 
repeated in 1 8 7 2 ,239 1881,240 and 1 8 8 4 .241

Oregon,242 Vermont,243 Rhode Island,244 New Hamp­
shire,245 and Nebraska246 having small Negro popula­
tions did not specifically legislate as to separate 
or mixed schools. The Constitution of Iowa pro­
hibited separate schools; and in the same year of 
the adoption of the Fourteenth Amendment, its 
Supreme Court held a statute providing for sep­
arate schools unconstitutional under the Iowa 
(not the United States) Constitution.247 Massa-

235 Ohio Laws 1878, p. 513.
236 Ohio Rev. Stats. 1880, c. 9, Sec. 4008, p. 1005.
237 W. Va. Laws 1865, c. 59, Sec. 17, p. 54.
238 W. Va. Laws 1871, c. 152, Sec. 19, p. 206.
239 W. Va. Laws 1872-3, c. 123, Sec. 17, p. 391.
240 W. Va. Laws 1881, c. 15, Secs. 17, 18, p. 176.
241 W. Va. Code, Art. 12, Sec. 8, p. 35 (Worth 1884).
242 Ore. Laws 1855, p. 466; Ore. Laws 1887, p. 23.
243 Vt. Laws 1865-66, p. 94; Vt. Laws 1892, p. 251.
244 R. I. Laws 1882, c. 50, p. 139.
245 N. H. Laws 1867, c. 78, Sec. 19, p. 165; N. H. Laws 

1878, c. 86, Sec. 19, p. 208.
246 Neb. Rev. Stat., c. 79, Sec. 2, p. 664; Neb. Rev. Stat., c. 

69, Sec. 2, p. 982 (1873).
247 Iowa Laws 1858, c. 52, p. 65; Clark v. Board of Direc­

tors, 24 Iowa 266 (1868).



— 199—

Appendix

chusetts had mixed schools before the adoption 
of the Fourteenth Amendment.248 Connecticut,249 
Maine,250 Michigan,251 Minnesota,252 and Wisconsin,253 
each having maintained separate schools for whites 
and Negroes before the adoption of the Fourteenth 
Amendment, continued such policy after their ratifi­
cation of the amendment until the policy was later 
changed by their own statutes, thereby evidencing 
their interpretation that the Fourteenth Amendment 
did not accomplish that purpose.

Illinois, which maintained separate schools prior 
to its ratification of the Fourteenth Amendment in 
1867, continued that policy thereafter until 1874 
when it enacted a statute discontinuing separate 
schools. Separate schools continued to exist, how­
ever, in sections of the State.254

248 Mass. Laws 1854-55, pp. 674-75; Mass. Laws 1904, c. 
498, Sec. 4, p. 608; Mass. Rev. Stat., c. 498, Sec. 11, p. 1160 
(Supp, 1889-1895).

249 Conn. Laws 1835, Title 53, p. 321; Conn. Laws 1866, 
1867, 1868, c. 58, p. 206.

250 Me. Laws 1873, c. 124, Sec. 4, p. 78; Me. Laws 1887, c. 
100, Sec. 31, p. 74; Me. Rev. Stat., Supplement 1885-1895, 
«. 11, Sec. 31, p. 132.

251 Mich. Laws 1871, No. 170, Sec. 28, p. 274; 2 Howell’s 
Ann. Stat., c. 3, Sec. 5070, p. 1334; 2 Mich. Comp. Stats., c. 
136, Sec. 18, p. 1478.

252 Minn. Laws 1864, c. 4, Sec. 33, p. 26; Minn. Stat., c. 
14, Secs. 2998, 2999 (Mason 1927); Minn. Stat., c. 245, Sec. 
10 (Mason 1927).

253 Wise. Rev. Stats. 1878, c. 27, Sec. 494, p. 185.
254 111. Laws 1847, p. 120; 111. Rev. Stat., c. 122, Sec. 100, 

P- 9°3; 111. Rev. Stat. (Cathran 1883), c. 122, Sec. 101, p. 
1406; 111. Laws 1949, p. 53. Although cases arising in Alton, 
moo01̂  ^een before ^ e  Illinois courts in 1886 and 
io99, this city continues to maintain separate schools for 
I '!11® and Negro students. Alton Evening Telegraph, Jan.
4-26,1950, p. 1, col. 1; Bond, Education of the Negro in the 

American Social Order, 382 (1934).



— 200—

Nevada continued separate schools for Negroes 
by statute in 1867, the same year the Fourteenth 
Amendment was ratified, but in 1872 these statutes 
were declared unconstitutional under the Nevada 
Constitution.255 In Pennsylvania the statutes provid­
ing for separate schools were retained after the 
Fourteenth Amendment was ratified. They were not 
repealed until 1881.258

Nowhere has any State statute requiring separate 
equal schools been declared to be in violation of the 
Fourteenth Amendment or any other provision of 
the Constitution of the United States. Where sep­
arate schools were abandoned, it was done on the vol­
untary action of the State Legislature.

III. CONTEMPORANEOUS CONSTRUCTION OF THE 
FOURTEENTH AMENDMENT AND THE CIVIL 
RIGHTS ACTS BY THE STATE AND FEDERAL 
COURTS

The Fourteenth Amendment, the Civil Rights Acts 
of 1866 and 1875, and the other similar enactments 
were construed by the State and Federal courts dur­
ing the period of their consideration and enactment. 
These cases may be looked to in order to determine 
the contemporary construction by the courts and 
thereby to ascertain from another source the status 
of separate schools under the Reconstruction enact­
ments.

255 Nev. Laws 1864-65, c. 145, Sec. 50, p. 426; Nev Laws 
1867, c. 52, Sec. 21, p. 95; State ex rel. S toutm eyer v. Duffy, 
7 Nev. 342 (1872).

256 Pa. Laws 1854, p. 623; Purdon’s Digest, Common 
Schools, Sec. 54, p. 244 (Brightly 1700-1872) ; Pa. Laws 
1867, p. 9; Pa. Laws 1872, p. 1048 repealing Pa. Laws 1855, 
Sec. 14, p. 12; Pa. Laws 1881, p. 76.

Appendix



— 201—

Appendix

It was contended in a New York Court in 
1869257 that the provisions of the City charter in Buf­
falo, New York, providing for separate schools for 
white and Negro students “were inconsistent with 
the Act of Congress called the ‘civil rights bill’ and 
had therefore become inoperative.” With regard to 
this contention the New York Court stated:

“It was no part of the civil rights bill to reg­
ulate or provide for the enjoyment of rights or 
privileges of the nature of those in controversy 
in this case. A principal object of that act was 
to confer citizenship upon the colored people, 
and . . .  to abrogate the rule . . .  in . . .  the 
Dred Scott case. . . .  In addition to that, this 
act was intended to confer upon the colored 
people all the substantial rights of the citizen. 
And these, so far as they are affected by the 
act, are enumerated in the first section. . . . 
It is clea<r that the righ t or privilege o f  attend­
ing a school provided  fo r  w hite children is not 
among those included in  this section. Nothing 
is contained in either of the succeeding sections 
of this act from which it is or can be claimed, 
that such a right or privilege can be derived, 
and it is, therefore, unnecessary that any par­
ticular reference should be made to them for the 
purpose of disposing of this case. They were 
enacted for the purpose of more effectually se­
curing and maintaining the rights conferred by 
and enumerated in the first section.” (p. 256.) 
(Italics are added throughout.)

257 Dallas v. Fosdick, 40 How. Prac. 249.



- 202 -

In Ohio in 1871 the statutory provision regarding 
separate schools was attacked as in contravention of 
the Fourteenth Amendment.258

The Ohio court stated:

“Unquestionably all doubts, wheresoever they 
existed, as to the citizenship of colored persons, 
and their right to the ‘equal protection of the 
laws/ are settled by this amendment. But 
neither of these was denied to them in this State 
before the adoption of the amendment. At all 
events, the statutes classifying the youth of the 
State for school purposes on the basis of color, 
and the decisions of this court in relation there­
to, were not at all based on a denial that colored 
persons were citizens, or that they are entitled 
to the equal protection of the laws. It would 
seem, then, that these provisions of the amend­
ment contain nothing conflicting with the stat­
ute authorizing the classification in question, 
nor the decisions heretofore made touching the 
point in controversy in this case.

“. . . conceding that the 14th amendment not 
only provides equal securities for all, but guar­
antees equality of rights to the citizens of a 
State, as one of the privileges of citizens of the 
United States, it remains to be seen whether 
this privilege has been abridged in the case 
before us. The law in question surely does 
not attempt to deprive colored persons of any 
rights. On the contrary it recognizes their 
right, under the constitution of the State, to 
equal common school advantages, and secures 
to them their equal proportion of the school 
fund. It only regulates the mode and manner

Appendix

258 State ex  rel. G am es v. McCann, 21 Ohio St. 198.



- 2 0 3 -

in which this right shall be enjoyed by all classes 
of persons. The regulation of this right arises 
from the necessity of the case. Undoubtedly it 
should be done in a manner to promote the best 
interests of all. But this task must, of neces­
sity, be left to the wisdom and discretion of 
some proper authority. The people have com­
mitted it to the general assembly, and the pre­
sumption is that it has discharged its duty in 
accordance with the best interests of all.

“At most, the 14th amendment only affords 
to colored citizens an additional guaranty of 
equality of rights to that already secured by the 
constitution of the State.

“The question, therefore, under consideration 
is the same that has, as we have seen, been here­
tofore determined in this State, that a classifi­
cation of the youth of the State for school pur­
poses, upon any basis which does not exclude 
either class from equal school advantages, is no 
infringement of the equal rights of citizens se­
cured by the constitution of the State.”

One year later (1872) the question as to wheth­
er separate schools violated the Fourteenth Amend­
ment was again before the New York courts.2’9 It 
was again held that so long as the separate schools 
were equal, the separation did not violate the Four­
teenth Amendment.

In State ex  rel. S tou tm eyer v. D uffy, 7 Nev. 342 
(1872) the court held that the particular statute 
providing for separate schools for Negroes was in­
valid under the Nevada Constitution (not the Fed-

269 People ex  rel. D ietz v. Easton, 13 Abb. (N. Y.) Pr. 
(N. S.) 159.

Appendix



— 204—

eral Constitution). As to the Fourteenth Amend­
ment, however, the dissenting opinion pointed out 
that

Appendix

“The case of the relator was sought to be 
maintained on the ground that the statute was 
in violation of the fourteenth amendment to the 
constitution of the United States. I  fu lly  agree 
w ith  m y associates that this position  o f  counsel 
is  u tte r ly  untenable ”

All the judges agreed that separate schools were 
not in violation of the Fourteenth Amendment. They 
were also agreed that if equal, separate schools were 
provided for Negroes, the school trustees could as­
sign Negroes to them and white students to other 
schools.

In 1873 the Pennsylvania court, in upholding a 
statute providing for separate schools, said:

“In the case before us, we fail to discover that 
any great constitutional question is involved, or 
that any right of the relator, or his children, 
growing out of the Fourteenth Amendment of 
the Constitution of the United States, or under 
the Civil Rights Bill, has been challenged, in­
vaded or denied. . . .”260

The contention that separate schools violated the 
Fourteenth Amendment and the Civil Rights Bill 
was also contemporaneously decided in the negative 
by the highest court of Indiana in 1874.261 That court

260 Com m onwealth v. Williamson, 30 Legal Int. 406.
261 C ory V' Carter, 48 Ind. 327.



— 205—

interpreted the Civil Rights Bill of 1866 as grant­
ing only specifically named rights, not including the 
privilege of attending a State school :

“• . . it is clear, admitting it to be valid, that 
it does not relate to or bear upon the right 
claimed in this case, for it purports only to con­
fer upon negroes and mulattoes the right, in 
every state and territory, to make and enforce 
contracts, to sue, be parties and give evidence, 
to inherit, purchase, lease, sell, hold, and convey 
real and personal property, and the full and 
equal benefit of all laws and proceedings for the 
security of person and property as enjoyed by 
white citizens, and subjects them to like pains 
and penalties. In this nothing is left to infer­
ence. Every right intended is specified.”

Then with regard to the Thirteenth, Fourteenth, 
and Fifteenth Amendments,

“In our opinion, such amendments have not 
in any other respect imposed restrictions or lim­
itations upon the sovereign power of the State. 
From this it results that there is no limitation 
upon the power of the State, within the limits 
of her own constitution, to fix, secure, and pro­
tect the rights, privileges, and immunities of her 
citizens, as such, of whatever race or color they 
may be, so as to secure her own internal peace, 
prosperity, and happiness.

“In our opinion, the classification of scholars, 
on the basis of race or color, and their educa­
tion in separate schools, involve questions of 
domestic policy which are within the legislative 
discretion and control, and do not amount to an 
exclusion of either class. . . .

Appendix



Appendix

— 206—

“The action of Congress, at the same session 
at which the fourteenth amendment was pro­
posed to the States, and at a session subsequent 
to the date of its ratification, is worthy of con­
sideration as evincing the concurrent and after- 
matured conviction of that body that there was 
nothing whatever in the amendment which pre­
vented Congress from separating the white and 
colored races, and placing them, as classes, in 
different schools, and that such separation was 
highly proper and conducive to the well-being 
of the races, and calculated to secure the peace, 
harmony, and welfare of the public; and if no 
obligation was expected to be or was imposed 
upon Congress by the amendment, to place the 
two races and colors in the same school, with 
what show of reason can it be pretended that 
it has such a compelling power upon the sov­
ereign and independent states forming the Fed­
eral Union?

“We refer to the legislation of Congress rel­
ative to schools in the District of Columbia,- at 
the first session of the Thirty-Ninth Congress, 
and the third session of the Forty-Second Con­
gress.”

After reviewing Congressional Acts on separate 
schools in the district, the opinion continued,

“This legislation of Congress continues in 
force, at the present time, as a legislative con­
struction of the fourteenth amendment, and as 
a legislative declaration of what was thought to 
be lawful, proper, and expedient under such 
amendment, by the same body that proposed 
such amendment to the states for their approval 
and ratification.”



— 207—

Again in 1874, the question of separate schools 
being violative of the Fourteenth Amendment was 
decided in the negative by the California Supreme 
Court in W ard  v. Flood, 48 Cal. 36:

“• . . nor do we discover that the statute is, 
in any of its provisions, obnoxious to objections 
of a constitutional character. It provides in 
substance that schools shall be kept open for the 
admission of white children, and that the educa­
tion of children of African descent must be pro­
vided for in separate schools.”

Continuing, the Court said:

“. • • our duties lie wholly within the much 
narrowed range of determining whether this 
statute, in whatever motive it originated, denies 
to the petitioner, in a constitutional sense, the 
equal protection of the laws; and in the circum­
stances that the races are separated in the public 
schools, there is certainly to be found no viola­
tion of the constitutional rights of the one race 
more than of the other, and we see none of 
either, for each, though separated from the 
other, is to be educated upon equal terms with 
that other, and both at the common public ex­
pense.”

The Federal Circuit Court was presented with the 
problem of interpreting the Fourteenth Amendment 
in a case involving separate schools in 1878, Ber- 
tonneau v. B oard  o f  D irectors, 3 Fed. Cases 294 
(1878). There the court said:

“Is there any denial of equal rights in the res­
olution of the board of directors of the city

Appendix



- 2 0 8 -

schools, or in the action of the subordinate offi­
cers of the schools, as set out in the bill? Both 
races are treated precisely alike. White chil­
dren and colored children are compelled to at­
tend different schools. That is all. The state, 
while conceding equal privileges and advantages 
to both races, has the right to manage its schools 
in the manner which, in its judgment, will best 
promote the interest of all.

“The state may be of opinion that it is better 
to educate the sexes separately, and therefore 
establishes schools in which the children of dif­
ferent sexes are educated apart. By such a 
policy can it be said that the equal rights of 
either sex are invaded? Equality of right does 
not involve the necessity of educating children 
of both sexes, or children without regard to 
their attainments or age in the same school. 
Any classification which preserves substantially 
equal school advantages does not impair any 
rights, and is not prohibited by the constitution 
of the United States. Equality of right does not 
necessarily imply identity of rights.”

In People, ex  rel. K in g  v. Gallagher, 93 N. Y. 438 
(1883) the validity of the separation of white and 
Negro students in the schools was before the court. 
The court held that if an equal separate school was 
established the separation was not repugnant to the 
Fourteenth Amendment. It was stated:

“The highest authority for the interpretation 
of this amendment is afforded by the action of 
those sessions of Congress which not only imme­
diately preceded, but were also contemporane­
ous with the adoption of the amendment in ques-

Appendix



— 209—

Appendix

tion.” (The court then discusses several Acts 
of Congress on the District of Columbia.)

“If regard be had to that established rule for 
the construction of statutes and constitutional 
enactments which require courts, in giving them 
effect, to regard the intent of the law-making 
power, it is difficult to see why the considera­
tions suggested are not controlling upon the 
question under discussion.

“The question here presented has also been 
the subject of much discussion and considera­
tion in the courts of the various States of the 
Union, and it is believed has been, when di­
rectly adjudicated upon, uniformly determined 
in favor of the proposition that the separate 
education of the white and colored races is no 
abridgement of the rights of either.”

And further:

“The argument of the appellant’s counsel, 
which is founded upon that clause of the consti­
tutional amendment granting to every citizen 
the equal protection of the law, must fall with 
his main argument as being founded upon the 
unwarranted assumption that this protection 
has been denied to the relator in _ this case. 
Equality and not identity of privileges and 
rights is what is guaranteed to the citizen, and 
this we have seen the relator enjoy.”

Similar cases arose in other States, the courts in 
these cases holding separate schools repugnant to 
some State Constitutional or statutory provision, but 
never holding separate schools prohibited by the



- 210-

Appendix

Fourteenth Amendment.262 It will thus been seen 
that in those cases which arose during the period 
contemporary with the adoption of the Reconstruc­
tion measures, the courts were all of the opinion that 
the Fourteenth Amendment had no effect on the 
power of the States to provide separate schools for 
white and Negro students.

262 Clark V.  Board of Directors, 24 Iowa 266 (1868) • 
People v. Board of Education, 18 Mich. 400 (1869) : Chase 
v Stephenson, 71 111. 383 (1874) ; Smith v. Board of Direc-

I18 ' Dove v- InrL Scho°l Dist., 41 Iowa
w 9 U f f L  ^ee aIso Martin v- Board of Education, 42 W. 
v a . 514 (1896) u ph old in g  separa tion  u n der th e  Fourteenth 
A m endm ent.



- 211-

Appendix

SECOND SECTION

Other Federal and State Court Decisions That the 
State May Furnish Education to White and 

Negro Students at Separate Institutions

Corbin v. School Board, 177 F. 2d 924 (C.C.A. 4th 
1949). The Court stated that the question of the 
validity of separate schools was foreclosed against 
plaintiffs “by decisions of the United States Su­
preme Court, and no useful purpose could be 
served by adding to the able discussion of the 
problem in the opinion below.” 84 F. Supp. 253 
(W.D. Va. 1949).

Brown v. Board of Trustees, LaGrange Ind. School 
Dish, S. D. Tex., Feb. 16, 1950, denied an injunc­
tion against alleged discrimination in providing 
separate schools. Following the Gaines and Sipuel 
cases, the Court concluded that maintaining sep­
arate schools for white and Negro students does 
not violate the Fourteenth Amendment.

Jennings v. Board of Trustees, Hearne Ind. School 
Dist. (W.D. Tex., 1948, unreported). A suit to 
compel entrance of Negro students to white high 
school. A  declaratory judgment was entered con­
sidering the Texas Constitutional provisions for 
separate schools and the equal protection clause of 
the Fourteenth Amendment. It concludes, “Under 
the above provisions, the defendants are required



— 212—

to furnish separate, but impartial and substan­
tially equal facilities to both Negro and white stu­
dents.”

Pitts v. Board of Trustees, 84 F. Supp. 975 (E.D. 
Ark., 1949) held that the Fourteenth Amendment 
does not require mixed schools, and that “such a 
course of action” would not be “for the best in­
terest of the children of either race.”

Boyer v. Garrett, D.C. Md., Dec. 30, 1949, held that 
it was proper, under the Fourteenth Amendment, 
for the State to provide separate recreation facil­
ities for the white and Negro citizens.

Carter v. School Board, 87 F. Supp. 745 (E.D. Va., 
1949). In holding that there was no discrimina­
tion in equal separate schools, the Court stated: 
“We find that the segregation in the public func­
tions of the State, including education in public 
schools, is exclusively a State matter and . . . 
is not questionable save to assure equality.”

Johnson v. University of Kentucky, 83 F. Supp. 707 
(E.D. Ky., 1949). Citing the Sipuel and Gaines 
cases the Court held separate school facilities are 
valid under the Fourteenth Amendment, provided 
the facilities are equal.

Wrighten v. University of South Carolina, 72 F. 
Supp. 948 (E.D. S.C., 1947). The Circuit Court 
(unreported) returned the case to the District 
Court for a fact finding of equality of the separate

Appendix



- 2 1 3 -

law school established after the first trial. In 
July, 1948, the trial court found that the Negro 
law school was substantially equal and denied 
Wrighten’s injunction. (Opinion unreported.)

B lu ford  v. Canada, 32 F. Supp. 707 (W.D. Mo. 1940; 
appeal dism. 119 F. 2d 779) denied damages for 
refusal to admit Bluford to U. of Missouri School 
of Journalism.

S tate (B lu fo rd ) v. Canada, 348 Mo. 298 (1941) 
denied mandamus to admit Bluford to Missouri 
Journalism School.

State (M ich ael) v. W itham , 179 Tenn. 250 (1942), 
following the G aines case, denied a mandamus to 
compel the admission of a Negro to Tennessee Uni­
versity.

Appendix



OTHER FEDERAL AND STATE COURT CASES (Cont’d)
State Case Issue Decision

Federal:
W ong Him v. Callahan 

119 Fed. 381
Constitutionality of sepa­

rate schools for Chinese chil­
dren.

The separate school being equal, the 
separation does not violate the 14th 
Amendment.

U. S. v. Buntin 
10 Fed. 730

Indictment for deprivation 
of right to attend non-segre- 
gated school.

Ohio statute providing for separate 
schools, if  schools are substantially 
equal, does not violate 14th Amendment.

Bertonneau v.
Board of Directors 
3 Fed. Cases 294

Constitutionality of sepa­
rate schools for Negroes.

The separate school being equal, the 
separation does not violate the 14th 
Amendment.

Alabam a:
State v. Bd. of School 

Commissioners, 145 
So. 575 (1933)

To obtain admission to 
white school.

Separation of children in schools is 
mandatory under statute.

A laska:
Sing v. Sitka School 
Bd., 7 Alaska 616 
(1927)

Constitutionality of sepa­
rate schools for Negroes and 
Indians.

The separate school being equal, the 
separation does not violate the 14th 
Amendment.

A
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ix



Arkansas:
State v. Board of Di­
rectors, 242 S. W . 545, 
Cert. Den. 264 U. S. 
567 (1922)

Maddox v. Neal,
45 Ark. 121 (1885)

To obtain admission to Separation is proper and ruling of 
white school; plaintiff claimed school board supported by evidence will 
no Negro blood. not be disturbed.

Constitutionality of sepa- The separate school being equal, the 
rate schools for Negroes. separation does not violate the 14th

Amendment.
A rizona:

Burnside v. Douglas 
School, 261 Pac. 629 
(1928)

Dameron v. Bayless, 
126 Pac. 278 (1912)

Harrison v. Riddle, 
36 P. 2d 984 (1934)

Constitutionality of sepa- The separate school being equal, the 
rate school for Negroes. separation does not violate the 14th

Amendment.
to

Same as above. Same as above. i-1Ol

Mandamus to compel sep- Where substantially equal school is 
aration by school board. provided school board must separate

pupils.
California:

W ard v. Flood,
48 Cal. 36 (1874)

Constitutionality of sepa- The separate school being equal, the 
rate schools for Negroes. separation does not violate the 14th

Amendment.
Dist. of Columbia:

W all v. Oyster, 36 App. 
D.C. 50 (1910)

To contest being sent to Statute is not invalid for lack of no­
separate school when there tice. Board may assign to separate 
was no notice of statute pro- school, 
viding for separate schools.

A
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ix



OTHER FEDERAL AND STATE COURT CASES (Cont’d)
State Case Issue Decision

Florida:
State v. Bryan, 39 So, 
929 (1905)

To test the constitutionality 
of the white university, when 
there was no similar Negro in­
stitution.

A s long as Negroes have a State Nor­
mal, it is not unconstitutional to place 
the white normal in a university.

Georgia:
Blodgett v. Bd. of Ed., 
30 S . E .  561 (1898)

To restrain appropriation 
for white high school when 
there was no appropriation 
for Negro high school.

W rong action. No benefit to Negroes 
by attacking white high school. Action 
should be to compel a high school for 
Negroes.

Bd. of Ed. v. Cumming, 
29 S. E. 488, A ff’d 175 
U.S. 528 (1898)

Same as above. Same as above.

Indiana:
Cory v. Carter, 48 Ind. 
327 (1874)

To contest separate schools. A  classification which does not ex­
clude either class from equal accommo­
dations is no infringement of rights.

Greathouse v. School 
Board, 151 N . E . 411 
(1926)

To prevent construction of 
separate high school as un­
lawful expenditure.

The separate school being equal, the 
separation does not violate the 14th 
Amendment.

A
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ix



State v. Gray, 93 Ind. 
303 (1884)

State v. Grubbs, 85 
Ind. 213 (1882)

State v. W irt, 177 
N . E . 441 (1931)

K ansas:
Reynolds v. Board of 
Education, 72 Pac. 274 
(1903)

Richardson v. Board 
of Education, 72 Kan. 
629 (1906)

W right v. Board of 
Education of Topeka, 
284 Pac. 363 (1930)

Kentucky:
Board of Education v. 
Bunger, 41 S. W . 2d 
931 (1931)

To obtain admission to The constitutionality of the law for  
white high school. the establishment of separate schools

for white and Negro children is settled.

To compel town to organ­
ize school for Negroes.

To require Negro to attend near-by 
separate school was proper.

To contest an alleged dis­
crimination in separate 
schools.

Organization of separate schools must 
not result in denying equal privileges; 
but here no denial is shown.

To test constitutionality of 
separate schools.

Same as above.

To prevent transfer to Ne- Separate schools,_ substantially equal 
gro school because plaintiff are constitutional; inequality shown by 
had to pass white school to plaintiff, 
reach Negro school.

To contest the establish- Board of Education has the power to 
ment of separate schools. establish separate schools.

Separate schools do not violate the 
14th Amendment.

Same as above.

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d
ix



State_______ Case___________________________ Issue Decision
Kentucky— Cont’d.

Daviess Co. Bd. v.
Johnson, 200 S. W .
313 (1918)

Grady v. Bd. of Educa­
tion, 147 S. W . 928 
(1912)

Mullins v. Belcher, 134 
S. W . 1151 (1911)

OTHER FEDERAL AND STATE COURT CASES (Cont’d)

Prowse v. Board of 
Education, 120 S. W . 
307 (1909)

M aryland:
Williams v. Zimmer- To obtain admission to Negro student cannot be admitted to
man, 192 Atl. 353 white school. white school; substantially equal Negro
(1937) school being provided.

Massachusetts:
Roberts v. City of Bos- To obtain admission to a School Board has the power to sep-
ton, 5 Cush. (M ass.) white school. arate Negro and white students. A d-
198 (1849) mission denied.

To obtain identical facil­
ities.

Facilities need not be identical if  they 
are equal.

To contest the establish­
ment of separate schools.

Board of Education has the power to 
establish separate schools.

To test constitutionality of 
separate schools.

To contest the establish­
ment of separate schools.

The separate schools being equal, the 
separation does not violate the 14th 
Amendment.

Board of Education has the power to 
establish separate schools.

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M ississippi:
Barrett v. Cedar Hill 
S. D., 85 So. 125 
(1920)

To contest bond issue for  
consolidated school because 
discriminatory.

Since there are ample substantially 
equal schools for Negroes they cannot 
contest establishment of school for  
whites.

Bond v. Tij Fung, 
114 So. 332 (1927)

To obtain admission of Chi­
nese boy in white school.

The separate school being equal, the 
separation does not violate the 14th 
Amendment.

Bryant v. Barnes, 
106 So. 113 (1925)

To contest an alleged dis­
crimination in establishing 
school districts.

Court will prohibit discrimination be­
tween races in the operation of the 
schools, but no discrimination is shown 
by separation.

to
i—1<©

Chrisman v. Town of To test the constitutionality 
Brookhaven, 70 Miss, of separate schools.
477 (1893)

The separate school being equal, the 
separation does not violate the 14th 
Amendment.

M issouri:
Lehew v. Brummell, To set up discrimination Schools being substantially equal 
15 S. W . 765 (1891) between white and Negro there was no discrimination.

schools.

State v. Cartwright, 
99 S. W . 48 (1907)

To test constitutionality of 
separate schools.

Separate schools do not violate 14th 
Amendment.

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OTHER FEDERAL AND STATE COURT CASES (Cont’d)
State Case Issue Decision

New Y o rk :
People v. Gallagher, 
93 N . Y . 438 (1883)

To contest separate schools. When statute provides for separate, 
equal schools, excluding Negroes from  
white schools is constitutional.

People v. School Board 
161 N. Y . 598 (1900)

Same as above. Same as above.

People v. Easton, 13 
Abb. (N . Y .)  Pr. N . S. 
160 (1872)

Same as above. Same as above.

Dallas v. Fosdick 
40 How. Prac. 249 
(1869)

Same as above. Same as above.

North Carolina :
Bonitz v. Trustees, 70 
S. E . 735 (1911)

To test constitutionality of 
tax for white schools only.

Separate schools are constitutional 
when substantially equal hence tax must 
be construed as applying to both white 
and Negro schools.

Johnson v. Bd. of Edu­
cation, 82 S. E . 832 
(1914)

To contest constitutionality 
of separate schools.

Advantages being equal separate 
schools are constitutional.

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Lowery v. Seh. Trus- To contest alleged discrim- 
tees, 52 S. E. 267 ination in separate schools. 
(1905)
McMillan v. School 
Committee, 107 N . C. 
609 (1890)_____________

North Carolina— Cont’d. 
W hitford v. Bd., 74 S. 
E. 1014 (1912)

Puitt v. Gaston Co.,
94 N . C. 709 (1886)

Smith v. Robersonville, 
53 S. E. 524 (1906)

To compel school committee 
to admit Negroes.

To get interpretation of 
constitutional provisions of 
separate schools.

To test constitutionality of 
separate schools.

To contest alleged discrim­
ination in separate schools.

N evada:
State v. Duffy, 7 Nev. To restrain board from  sep- 
842 (1872) arating white and Negro stu-

________________ _ __________ dents._____________
Ohio:

State v. Bd. of Educa- To contest alleged discrim- 
tion, 7 Ohio Dec. 129 ination in separate schools. 
(1876)

Separate schools, substantially equal, 
are constitutional; no discrimination 
shown.

Statute requiring separate schools 
was binding on Committee.

Statute providing for substantially 
equal school would be constitutional.

Advantages being equal, separate 
schools are constitutional.

Separate schools, substantially equal, 
are constitutional; no discrimination 
shown.

The separate school being equal, the 
separation does not violate the 14th 
Amendment.

Separate schools, substantially equal, 
are constitutional; no discrimination 
shown.

State v. McCann, 21 To contest separate schools. Establishment of separate schools 
(Jhio St. 198 (1871) _________________ ____________________substantially equal is constitutional.

to
to

Appendix



OTHER FEDERAL AND STATE COURT CASES (Cont’d)
State Case Issue Decision

Oklahoma:
School District v. 
Board, 275 Pac. 292  
(1928)

To recover State Aid Funds 
from  Board of County Com­
missioners.

Separate schools with like conditions 
must be provided and impartially main­
tained.

Jumper v. Lyles, 185 
Pac. 1084 (1921)

To prevent certain schools 
being designated Negro 
schools.

The Board has the power to deter­
mine which separate school shall be at­
tended by white or Negro students.

State v. Albritton, 
224 Pac. 511 (1924)

To test constitutionality of 
separate schools.

Facilities being substantially equal, 
separate schools are constitutional.

Pennsylvania:
Commonwealth v. W il­
liamson, 30 Leg. Int. 
406 (Pa. 1873)

To contest exclusion from  
public schools.

Under statute if twenty Negro chil­
dren appeared for admission a separate 
school may be established.

South Carolina:
Tucker v. B lease, 81 
S. E . 668 (1914)

To prevent exclusion of 
Negro from white school.

School Board may set up separate 
school for these persons and if  substan­
tially equal it is constitutional.

Tennessee:
Greenwood v. Rick­
man, 235 S. W . 425 
(1921)

To test separate schools as 
discriminatory, for tax pur­
poses.

W hen equal opportunities are given 
in free schools there is no discrimina­
tion in taxes.



V irginia:
Eubank v. Boughton, To compel admission to 
36 S. E . 529 (1900) white schools.

W est V irgin ia :
Martin v. Board of Ed- To test constitutionality of 
ucation, 26 S. E . 348 separate schools.
(1896)

The duty is upon the school board to 
provide separate schools. Admission 
denied.

The separate school being equal, the 
separation does not violate the 14th 
Amendment.



- 2 2 4 -

Appendix

TH IRD SECTION

A N N O U N C E M E N T  OF AP P R O V A L OF NEGRO L A W  
SCHOOL B Y  A M E R IC A N  B A R  ASSOCIATION

A M E R IC A N  B A R  ASSOCIATION  

Section of Legal Education and Admissions to the Bar

September 14, 1949

Dean Ozie Harold Johnson 
Texas State University For Negroes 
School of Law 
Austin, Texas

My dear Dean Johnson:

This will advise you that your school was granted 
provisional approval, subject to an annual inspection 
until full approval be granted, at the annual meet­
ing of the American Bar Association in St. Louis 
last Thursday, September 8th. This approval was 
granted upon the recommendation of the Council of 
the Section of Legal Education and Admissions to 
the Bar.

Our heartiest congratulations not only on the ap­
proval but on the splendid record which you have 
made to date.

Respectfully yours,
(Sgd) JOHN G. H E R V E Y ,

Adviser.



- 2 2 5 -

Appendix

STATEMENT OF AMERICAN BAR ASSOCIATION 
REGARDING APPROVAL OF NEGRO 

L A W  SCHOOL

A M E R IC A N  BAR ASSOCIATION  

Section of Legal Education and Admissions to the Bar

March 9, 1950
Dean Ozie Harold Johnson 
Texas State University for Negroes 
School of Law 
Houston, Texas

My dear Dean Johnson:

I have just received copy of catalogue of the Uni­
versity of Texas Law School, made a comparison 
with that of your school, and the thought occurred 
to me that you probably may want to make some 
mention in your new catalogue of approval of your 
school by the American Bar Association. No objec­
tion would be made to the inclusion of a statement 
in your catalogue that “The school is approved by 
the American Bar Association.”

I advised you last September that the school had 
been granted provisional approval by the House of 
Delegates subject to an annual inspection until full 
approval be granted. So far as it affects your school 
the distinction between provisional approval and 
full approval is a technical one. The standards ex­
acted are identical whether approval be provisional 
or full. This for the reason that the distinction was 
created some years ago when applications came be-



- 226-

fore the Council from law schools which were not at­
tached to established universities or colleges or which 
did not have endownment funds. You can appreciate 
that the absence of an endownment fund and the ab­
sence of attachment to an established institution can 
influence scholarship standards. In that situation the 
Council voted to grant provisional approval and 
watch for a period of time to ascertain what in­
fluence, if any, was had on scholarship standards. 
The policy of the Council since that date, however, 
has been to recommend provisional approval of ap­
plicant schools which are found to be in full compli­
ance with the standards and to make annual inspec­
tions until full approval be granted. This was done in 
the case of your school. Like action was taken as re­
spects the University of New Mexico Law School and 
the University of California Law School at Los 
Angeles.

The Council found your school not only to be in 
full compliance with its standards but to exceed 
those standards in many respects. We have no doubt 
but that your school will continue to comply and your 
situation is in no way similar to that of those schools 
which have no endowment fund or are not parts of 
established, accredited institutions. Thus I can as­
sure you that no objection would be taken, as stated 
above, to the reference indicated in future imprints 
of your catalogue.

Respectfully yours,
JOHN G. H E R V E Y ,

Adviser.

Appendix



- 2 2 7 -

Appendix

A N N O U N C E M E N T  B Y  AM ER ICAN  ASSOCIATION OF 
L A W  SCHOOLS TH A T  THE NEGRO L A W  

SCHOOL M ET ITS STANDARDS

Chicago, Illinois 
December 29, 1949 

The School of Law of the Texas State University 
for Negroes applied for admission. The Committee 
has investigated its qualifications and finds that the 
school complies with our requirements and stand­
ards at this time. In view, however, of the pendency 
in the Supreme Court of a case which may well re­
examine the validity of the constitutional test for 
such an institution as hitherto understood, the Com­
mittee and the school have agreed that action on the 
application be deferred.

For the Executive Committee of the Association 
of American Law Schools.

(Sgd) F. D. G. RIBBLE
Secretary-Treasurer

CERTIFICATE OF T E X A S  SUPREME COURT CON­
CERNING THE ADM ISSION TO THE BAR  

OF H E N R Y  E. DOYLE

THE SUPREME COURT OF TEXAS
I, GEO. H. TEMPLIN, Clerk of the Supreme 

Court of Texas, do hereby certify that the records of 
this office show that Henry E. Doyle took and suc­
cessfully passed the State Bar Examination in Oc­
tober, 1949, and was duly admitted and licensed as 
an attorney and counselor at law by the Supreme 
Court of Texas on the 1st. day of December, 1949. ^

I further certify that the records on file in this 
office show that the said Henry E. Doyle was a stu­
dent of the Law School of The Texas State Univer-



Appendix

— 228—

sity for Negroes, having begun his studies in said 
University on September 10, 1947.

IN TESTIMONY WHEREOF, Witness my hand 
and the seal of the Supreme Court of Texas at the 
City of Austin, this, the 6th day of March, 1950.

(Sgd) GEO. H. TEM PLIN,
[Seal] Clerk of the Supreme Court of Texas.

A N S W E R  OF A T T O R N E Y  G E N E R A L  OF T E X A S  TO 
R EQ U EST OF F E D E R A L  COUNCIL OF 

CHURCHES FOR CO NSENT TO 
FILE AM ICUS CU RIAE  

BRIEF

December 28, 1949
Hon. Charles H. Tuttle 
15 Broad Street 
New York 5, N. Y.
Dear Mr. Tuttle: Re: Sweatt v. Painter, et al.

This will acknowledge your request for our con­
sent to your filing in the above case an amicus curiae 
brief on behalf of The Federal Council of Churches. 
Your proposed brief undertakes to support the con­
tention of the petitioner, Heman Marion Sweatt, that 
it is unconstitutional for State governments to pro­
vide separate schools for students of the white and 
Negro races even if the separate facilities are equal.

Your brief, purporting to speak for all of the 
Council’s member denominations (except the Pres­
byterian Church, which “disassociated” itself from 
the brief) contains and undertakes to support the 
following statement:

“The Federal Council of the Churches of 
Christ in America hereby renounces the pat-



- 2 2 9 -

tern of segregation in race relations as unnec­
essary and undesirable and a violation of the 
Gospel of love and human brotherhood. . .

As my First Assistant, Mr. Joe R. Greenhill, told 
you by telephone, we will consent to your filing the 
brief if you will add thereto a disclosure of the fact 
that the religious denominations represented by the 
Federal Council maintain separate churches, sep­
arate church schools, separate denominational col­
leges, and segregated congregations for white and 
Negro citizens in Texas and fourteen other Southern 
States.

On the point you seek to cover as to “necessity and 
desirability” of separate physical facilities, your 
practice is equally as important as your preachment, 
and I would not voluntarily consent to your presen­
tation of the latter without a full and frank disclos­
ure of the former.

Some of these denominations have fine schools and 
excellent churches for white and Negro citizens in 
Texas, but they are separate just as the State schools 
are separate. The compelling reasons which caused 
the people of Texas to adopt such a policy in their 
constitution undoubtedly were and are apparent to 
those forming the policies of the churches.

It is doubtful if the Federal Council speaks the 
true sentiment of the Southern congregations or the 
actual p ractice  of the Northern congregations on 
this issue. Be that as it may, a full disclosure of the 
actual practice of the Council’s member churches in 
Texas should be made so the Court will have the true 
and complete picture. Otherwise, the Court might

Appendix



— 230—

be led to believe from your statement of Council 
policy that the member churches no longer maintain 
separate schools and congregations in this State and 
that they are no longer thought to be “necessary and 
desirable.”

In all fairness to my State, to Texas’ congrega­
tions of the fine churches which belong to the Federal 
Council, and to previous Supreme Court decisions on 
this subject, I must say that you are mistaken in 
your belief that segregation has been maintained or 
permitted here because of a contention of racial su­
periority or inferiority. It has been based solely 
upon the right of a State or a church to offer the same 
education or worship in separate schools or separate 
churches if the segregated system would better pre­
serve the peace, welfare, opportunities and happiness 
of a majority of both races.

If you will advise the Court in your brief of the 
policy and practice now being followed by your mem­
ber churches in Texas and other Southern States, I 
will gladly consent to the filing of your brief. Other­
wise, I must decline.

I wish you Godspeed in the work of the church and 
regret that I must differ with you in this regard.

Very truly yours,
(Sgd) PRICE D A N IE L

Attorney General of Texas

Appendix



— 231—

Appendix

THE TEXAS POLL

The Statewide Survey of Public Opinion, Austin, Texas*

Austin, Texas, March 18.— The case for opening 
the doors of The University of Texas to Negro stu­
dents is making little headway in the court of public 
opinion.

In its latest survey, The Texas Poll finds the gen­
eral attitude of the adult public much the same as it 
was two years ago. The Poll’s finding is based on 
comparable statewide surveys in which represent­
ative cross sections of the population were asked this 
question:

“Generally, are you for or against Negroes 
and whites going to the same universities?”

Ap-ainst

March
1948

____________ 76%
Now
76%

Enr _  _____ 20 20
No opinion_________ _________  4

100%

4

100%

Even the pattern of opinion by races and educa­
tional levels was found relatively unchanged. A 
comparison of the percentages favoring Negroes and 
whites in the same universities follows:



- 2 3 2 -

Appendix

March 
1948 Now

W hites-----------------------------------------  11% 12%
Negroes _________________________ 78 74

By Education:
College-Trained

hdults ________________________ 29% 31%
High school trained_____________ 15 15
Grade school or less_____________  17 19

The results show that only Negroes, as a group, 
give a majority vote to the idea of teaching both 
races in the same universities. A  substantial min­
ority of college-trained adults supports this view, 
but the lower educational levels who make up the 
greater portion of the population are strongly op­
posed.

Some who favor the general policy of barring 
, Negroes from the University say they would not 
object if one or two were admitted to the law school 

| or if advanced students were allowed to enroll in 
graduate courses not available elsewhere in Texas. 
But the majority of Texas adults is opposed even to 

\ these exceptions.
In the latest survey, conducted February 20-25, 

The Texas Poll put these specific issues before a cross 
section of 1,000 adults of all walks of life:

“Would you object if one or two Negro law 
students were allowed to study in The Univer­
sity of Texas at Austin?”



- 2 3 3 -

Appendix

Negroes Whites All
Would object___________  8% 69% 60%
Would not object________  84 28 36
No opinion ______________ 8 3 4

100% 100% 100%

Breakdown By Education %Who Would
Not Object

Adults who have been
to college _________________  47%

Adults who have been 
to high school, but
not to college____________  33

Adults who have been 
no higher than

grade school _____ ...______  33

“What about Negroes who have finished col­
lege and want to study advanced courses that 
are offered nowhere else in Texas except at The 
University in Austin. Should they be allowed 
to enter the University?”

Negroes Whites All
Yes, they should________  89% 34% 42%
No, they shouldn’t ____ 1 60 52
No opinion_____________ 10 6 6

100% 100% 100%



- 2 3 4 -

Appendix

Breakdown by Education %Who Vote
“Yes”

Adults who have been
to college__________  ______ 56%

Adults who have been
to high school, but

not to college ___________ 38
Adults who have been

no higher than
grade school_____________ 38

Negroes are included in each Texas Poll in their 
correct proportion to the white population.

THE 1950 ACT OF THE TEXAS LEGISLATURE 
REQUIRING SEPARATION OF WHITE AND 

NEGRO CITIZENS IN THE STATE PARKS 1

WHEREAS, It has been the policy of the State 
of Texas to provide separate accommodations and 
facilities in the system of the State parks; and

WHEREAS, The necessity for such separation 
still exists in the interest of public welfare, safety, 
harmony, health, and recreation; and

WHEREAS, The State of Texas desires to con­
tinue separate accommodations and facilities for both 
white and Negro citizens; now, therefore,

1 S. B. 19, Acts 51st Leg., 1st C. S. 1950. The title is 
omitted in the interest of brevity.



— 235—

B e I t  E n acted  B y  The L egisla ture O f The State O f
T ex a s :

Section 1. Separate facilities shall be furnished 
in the system of State parks for the white and Negro 
races, and impartial provision shall be made for both 
races.

Sec. 2. The State Parks Board is authorized:

(a) To make rules and regulations for the use 
of the State Parks and the facilities therein by the 
white and Negro races by providing separate parks 
or separate facilties within the same parks, on such 
basis as will furnish equal recreational opportunities 
and at the same time protect and preserve harmony, 
peace, welfare, health, and safety of the State and 
the community;

(b) To close any park or facility or facilities or 
areas in the State parks where separate equal facili­
ties for the white and Negro races cannot be furnish­
ed, and to reopen them when such facilities are avail­
able;

(c) (Omitted as not relevant here).

Sec. 3. The fact that the policy of the State in 
requiring separate park facilities for white and 
Negro citizens is necessary to preserve the public 
peace and welfare, and to protect the privileges of 
both the white and Negro citizens in the use of the 
State parks; and the further fact that such policy 
should be set forth by statutory enactment giving 
additional powers to the State Parks Board to carry 
out such policy, create an emergency . .

Appendix