United States v. Caldwell Brief Amius Curiae in Support of Respondent

    IN  T H E

Supreme Court of the United States
October Term, 1948

No. 667

HUMAN MARION SWEATT,

vs.
Petitioner,

THEOPHILIS SHICKEL PAINTER, ET AL.

PETITIONER’S REPLY BRIEF TO RESPONDENTS’ BRIEF 
IN OPPOSITION TO PETITION FOR WRIT OF 

CERTIORARI TO THE SUPREME COURT 
OF THE STATE OF TEXAS

W . J . D u rh a m ,
W illiam  IT. H astie,
W illiam  R . M ing , J r .,
J ames M . N abrit, J r ., 
T hurgood M arshall,

Attorneys for Petitioner.
R obert L. Carter,
E. B. B u n iiley , Jr.,
H arry B ellinger,
U. 8 . T ate,

Of Counsel.



IN  T H E

Supreme Court of the United States
October Term, 1948

No. 667

H em an  M arion S w eatt ,
Petitioner, 

vs.

T heophilis  S hickel. P ainter , et al.

REPLY BRIEF FOR PETITIONER.
The brief for the respondents in opposition to the peti­

tion for writ of certiorari filed herein is based npon two 
main points. It is claimed that the “ separate but equal”  
doctrine first advanced in the case of Plessy v. Ferguson, 
163 IT. S. 537, has not only been uncontroverted by later de­
cisions of this Court, but is controlling in this case to the 
extent of precluding the petitioner from challenging the 
validity of the segregation statutes of the State of Texas 
as applied to this case. This argument is followed by the 
contention that the only issue to be determined is the 
question of a comparison of the physical facilities of the 
two law schools.

The record in this case presents to this Court for the 
first time, the issue of the validity of state segregation stat­
utes as applied to a Negro student seeking a legal educa­
tion. The record in this case similarly presents for the 
first time, expert testimony which established the unrea­
sonableness of racial classifications as applied to graduate 
and professional education.



2

I.

Under the theory advanced by the respondents, the states 
can with impunity, use race alone as the basis for classifi­
cation for governmental purposes. Respondents further 
claim that such racial classifications cannot be challenged 
under any circumstances. The theory also carries with it 
the proposition that the effect of the enforced segregation 
of one racial group of law students is not a factor to be 
considered in deciding whether equal facilities are offered 
within the meaning of the Fourteenth Amendment.1 If this 
position is correct, then all state statutes enforcing racial 
segregation in governmental functions are beyond challenge.

The right to be free from racial discrimination is one 
of the most important guaranties of personal freedom which 
our Constitution secures. This right cannot be protected 
by the use of a formula which seeks to evade rather than 
enforce equal protection. The petition for certiorari and 
brief in support thereof shows that later decisions of this 
Court have all but expressly overruled Plessy v. Ferguson 
and have consistently repudiated the ratio decedendi on 
which the separate but equal doctrine rests. Our position 
in this case holds that the racial discrimination inherent in 
the separate but equal doctrine of Plessy v. Ferguson is in 
the same position as was the doctrine of judicial fact of 
Crowell v. Benson in the case of Estep v. United States 
where Mr. Justice F rankfurter  stated: “ In view of the 
criticism which that doctrine as sponsored by Crowell v. 
Benson, 285 U. S. 22, 76 L. ed. 598, 52 S. Ct. 285, brought 
forth and of the attritions of that case through later de­

1 “ Prior to the trial, the power of the State to classify, and the 
reasonableness of the classification as applied in this case, had been 
settled as a matter of law by this Court. Based thereon, evidence on 
the point was properly limited by the trial court.” Point Three of 
Respondents’ Brief, page 55.



3

cisions, one had supposed that the doctrine had earned a 
deserved repose.”  (337 U. S. 114,142.)

On the other hand, respondents assert that the decisions 
of later cases including the Gaines case, 305 U. S. 337, the 
Sipuel case, 332 U. 8. 631, and the Fisher case, 333 U. S. 147, 
have reemphasized the separate but equal doctrine. The 
validity of the segregation statutes of Missouri were not in 
issue in the Gaines case. In the Sipuel-Fisher case, this 
Court made it clear that the petition for certiorari in that 
case “ did not present the issue where a state may not 
satisfy the equal protection clause of the Fourteenth Amend­
ment by establishing a separate law school for Negroes” . 
The case was returned to the Oklahoma District Court 
where the issue was clearly raised and evidence was pro­
duced by experts, including recognized leaders in the field 
of legal education from all sections of the country, who gave 
their reasons why it is impossible for a Negro to obtain an 
education in a separate law school equal to that available 
in the regular law school. While this case was on appeal 
to the Supreme Court of Oklahoma, Mrs. Fisher wns ad­
mitted to the law school of the University of Oklahoma and 
the appeal was dismissed as being moot.2

Respondents in their brief in this Court for the first time 
make an effort to show a basis for the racial classification 
in this case. In the development of the third point of re­
spondents’ brief, emphasis is placed upon such extraneous 
matters as the “ Report of the State-Wide Survey of Pub­
lic Opinion”  of January 26, 1947. The inconclusiveness of 
such matters is emphasized by the reaction of the student 
body of the University of Texas as exemplified by recent

2 A  certified copy of the transcript of record of the Retrial of this 
case has been deposited with the Clerk of the Court.



4

articles appearing in the campus newspaper of the Uni­
versity of Texas.3

II.

Point two of respondents’ brief raises the procedural 
question brought about by their theory of the meaning of 
the equal protection of the laws clause of the Fourteenth 
Amendment. This point is :

“ 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.”

Petitioner filed his exceptions to the findings and judg­
ment of the trial court (R. 441). On appeal to the Court 
of Civil Appeals of Texas, petitioner included the follow­
ing point:

‘ ‘ The error of the Court in holding that the pro­
posal 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 justi­

8 A  copy of the latest reaction to the admission of qualified Negroes 
to the professional schools of the University of Texas is set forth in 
the Appendix.



5

fied the denial of appellant’s petition for admission 
to the law school of the University of Texas.” 4

This point was preserved in the motion for rehearing 
in the Court of Civil Appeals (Points IV and VII, R. 462- 
463); in application to Supreme Court of Texas for a writ 
of error (Points IV and V, Respondents’ Brief, p. 107); 
and in the motion for rehearing in the Supreme Court of 
Texas (Points IV and V, E. 469).

The issue in this case was properly raised and has been 
preserved throughout this litigation. Petitioner, believing 
that this is a question of great public importance, has made 
every effort to present as complete a record as is legally 
possible. Respondents ’ brief demonstrates an unwillingness 
to have these issues determined.

Conclusion.

Access to public education is vital to our democratic way 
of life. Legal education is training for service to the state. 
Implicit in the meaning of democracy, is that its rights and 
obligations apply to all citizens without regard to race, 
color, creed or national origin. The petition for certiorari 
and brief in support thereof and respondents’ brief in op­
position thereto, when read together establish the over­
whelming importance and significance of the issues raised 
in this case.

4 Rule 418— Rules Civil Procedure of Texas provides that: “ Such 
points will be sufficient if they direct the attention of the Court to the 
error relied upon.”



6

W herefore, it is resp ectfu lly  subm itted that the peti­
tion  fo r  w rit o f  certiora ri to rev iew  the judgm ent o f  the 
cou rt below , should be granted.

W. J. D u rh a m ,
W illiam  II. H astie,
W illiam  R. M ing , J r .,
J ames M. N abrit, J r ., 
T hurgood M arshall,

Attorneys for Petitioner.

R obert L. Carter,
E. B. B u n k le y , J r ., 
H arry B ellinger,
IT. S. T ate,

Of Counsel.



Appendix.

D aily  T exan— September 18, 1949

M ark  B atterson—

STUDENT BARNETT GLADLY WELCOMED

There hasn’t been much said about it one way or the 
other, but a big step toward putting an end to one of Texas’s 
most vicious evils is being taken in Galveston this week.

About the same time students here at the University 
start moving into classrooms, a 23-year-old man from 
Austin will go to his first classes at the medical branch at 
Galveston. His previous grades will compare favorably 
with those of any other student at the school, he will study 
just as hard as anyone else there this fall, and on the whole 
he would probably be a good example of an average medical 
student, except for one thing.

Herman Barnett, the student, is a Negro.

I t ’s true that he will be there only on a temporary basis, 
but the fact remains that Barnett is the first of his race to 
finally make it into the same Texas classrooms as his fellow 
citizens. And no matter how he got there, it ’s a big step 
in a state abounding in superstition on the subject of races.

Later, non-segregation in education is going to spread 
until Negroes go to school here on Forty Acres.

And still later, Negroes will enter Texas high schools 
and grammar schools.

This won’t come about by any sudden enveloping feeling 
of liberalism on the part of Texans as a whole, but will 
evolve simply through financial necessity. Texas can’t



8

afford to maintain equal and separate institutions for its 
Negro population, and eventually it will have to drop the 
barriers.

What’s more, there won’t be any riots. On the contrary, 
we think that when the time comes, students who don’t 
already see it will realize that capability doesn’t depend 
on skin color, and discover that Negroes will hit the honor 
rolls in the same ratio as the white students.

They’ll learn to sit down at the same tables with Negroes 
over at the Commons, and one day they’ll use the same 
knives and forks that fed fellow Negro students the day 
before.

In spite of what they’ve been taught by superstitious 
parents, they’ll find out that all of this won’t contaminate 
them, and that Negroes are humans, with the same indi­
vidual faults or merits that humans bear.

Higher institutions of learning are the logical places 
for segregation to begin its wilting process. Students are 
supposed to be on the whole of a higher mental caliber, and 
whether they really are or not, the fact, remains that they 
at least have more of a chance to sharpen their reasoning- 
processes enough to whittle down discrimination based on a 
medieval-like their subconscious.

In spite of what a lot of the more fiery brand of liberals 
seem to think, many white people simply can’t help having 
the feelings they have on the subject of race. They have 
been raised to believe in their superiority, and even when 
their reasoning protests against it, they still have a hard 
time getting things straight in their subconscious.

We don’t believe many people are purposely vicious in 
their attitudes, but it amounts to the same thing as far as 
the Negro is concerned. All of this is what makes it a



9

problem that will take time, patience, and a working abun­
dance of common sense to solve.

The Galveston branch is lucky in getting a student like 
Barnett, just as his race is fortunate in having a representa­
tive of his caliber. Barnett is an honor graduate from 
Samuel Huston College, and he was an Air Corps officer 
during the war.

He was one of thirty-five Negroes who asked admittance 
to the University graduate school, the dental school at 
Houston, and the Galveston medical branch last fall. At the 
time, they were denied admittance.

Until someone shows us differently, we think that 
Barnett will come out all right at the Isle branch.



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