Fisher v. Hurst Motion for Leave to File Petition for Writ of Mandamus, Petition and Brief in Support Thereof

    IN  T H E

flkrurt of %  Unite!* 0iateH
October Term, 1947

No. , Miscellaneous

A da  L ois S ip u e l  F is ii e u,
Petitioner,

T h e  H o n o r able  T h u r m a n  S . H u r s t , C h ie f  
J u s t i c e ; T h e  H o n o r able  D e n v e r  N . 
D a v is o n , V ic e  C h ie f  J u s t i c e ; T h e  
H o n o r able  F l e t c h e r  R i l e y , W a y n e  
W . B a y l e s s , E a r l  W e l c h , N . S . C o r n , 
B e n  A r n o ld , T h o m a s  L. H ib s o n , a n d  
J o h n  L u t t r e l l , A sso ciate  J u s t ic e s  of 
t h e  S u p r e m e  C o u r t  of t h e  S t a t e  of 
O k l a h o m a  ; T h e  H o n o r a b le  J u s t in  
H in s h a w , D is t r ic t  J udge  C l e v e l a n d  
C o u n t y  D is t r ic t  C o u r t  of  O k l a h o m a  
a n d  t h e  B oard of R e g e n t s  of t h e  U n i­
v e r s it y  of  O k l a h o m a .

MOTION FOR LEAVE TO FILE PETITION FOR 
WRIT OF MANDAMUS, PETITION AND BRIEF 

IN SUPPORT THEREOF.

T hurgood  M a r s h a l l ,

A m o s  T . H a l l ,

Attorneys for Petitioner.
W il l ia m  H . H a s t ie ,

E dw ard  R . D u d l e y ,

M a r ia n  W y n n  P e r r y ,

Of Counsel.



I N D E X

PAGE

Motion for Leave to File Petition for Writ of Mandamus 1

Brief in Support of Motion and Petition ____________  13

Argument:
I—The Supreme Court of Oklahoma and the Dis­

trict Court of Cleveland County have violated 
the mandate of this Court ___________________  14

II—Mandamus is the appropriate remedy in this
case _____________    19
Mandamus Will Always Lie to Compel Obedi­

ence to a Mandate of This Court_______ __  19

Conclusion ___________________________________________ 21

Exhibit A  _____________________   23

Exhibit B ._________________________________ __-..... ...._  28

Table of Cases Cited

Ex Parte Sibbald, 12 U. S. 488 ____________ ________ _ 20
Ex Parte Texas, 315 U. S. 8 _________________________  20
Ex Parte Union Steamboat Co., 178 U. S. 317_________  20
Federal Communications Commission v. Pottsville, 309 

U. S. 134 _______________ 1_______________________ 20
In re Potts, 166 U. S. 263 __________________________  20
In re Sanford Fork and Tool Co., 160 U. S. 247 ... _ 20
Missouri ex rel. Gaines v. Canada, 305 U. S. 337 ______  16
U. S. v. Fossatt, 21 How. 445 ____________________ _._..19, 20



11

Table o f Authorities Cited
PAGE

American Teachers Association, The Black and White 
of Rejections for Military Service, August, 1944____ 17

Ballantine, The Place in Legal Education of Evening & 
Correspondence Law Schools, 4 Am. Law School 
Rev. 369 (1918) __________________________________  16

Boyer, Smaller Law Schools: Factors Affecting Their 
Methods and Objectives, 20 Oregon Law Rev. 281 
(1941) ____________________________________________  16

Klineberg, Negro Intelligence and Selective Migration,
New York, 1935 _____      17

McCormick, The Place and Future of the State Uni­
versity Law School, 24 N. C. L. Rev. 441__________  17

Peterson & Lanier, “ Studies in the Comparative Abili­
ties of Whites and Negroes,”  Mental Measurement 
Monograph _____________________ 1________________  17

Simpson, The Function of a University Law School, 49 
Harv. L. Rev. 1068 _______________ ____________ j_  17

Stone, The Public Influence of the Bar, 48 Harv. L.
Rev. 1 ____________________________________________  17

Townes, Organisation and Operation of a Law School,
2 Am. Law School Rev. 436 (1910) ________________ 16



1ST T H E

Supreme (tart of tlir MnlUh
October Term, 1947 

No. , Miscellaneous

A da L ois S ip u e l  F is h e r ,
Petitioner,

v-
T h e  H o n o r able  T h u r m a n  S . H u r s t , C h ie f  

J u s t i c e ; T h e  H o n o r able  D e n v e r  N . 
D a v is o n , V ic e  C h ie f  J u s t i c e ; T h e  
H o n o r able  F l e t c h e r  R il e t , W a y n e  
W. B a y l e s s , E ar l  W e l c h , N. S. C o r n , 
B e n  A r n o ld , T h o m a s  L .  G ib s o n , an d  
J o h n  L u t t r e l l , A sso cia t e  J u s t ic e s  of 
t h e  S u p r e m e  C o u rt  of t h e  S t a t e  of 
O k l a h o m a ; T h e  H o n o r a b le  J u s t in  
H in s h a w , D is t r ic t  J udge  C l e v e l a n d  
C o u n t y  D is t r ic t  C ou rt  of O k l a h o m a  
a n d  t h e  B oard of  R e g e n t s  of  t h e  U n i­
v e r s it y  of O k l a h o m a .

Motion for Leave to File Petition for 
Writ of Mandamus.

To the Honorable Fred M. Vinson, Chief Justice of the 
United States and Associate Justices of the Supreme- 
Court of the United States:

Petitioner, Ada Lois Sipuel Fisher, moves the Court for 
leave to file the petition for a writ of mandamus hereto an­
nexed; and further moves that an order and rule be entered 
and issued directing the Honorable T h u r m a n  S. H u r s t , 

Chief Justice; the Honorable D e n v e r  N, D a v iso n , Vice



Chief Justice; and the Honorable F l e t c h e r  R i l e y , W a y n e  

W. B a y l e s s , E a r l  W e l c h , N. S. C o r n , B e n  A r n o ld , T h o m a s  ' 

L. G-ib so n  and J o h n  L ttttrell, Associate Justices of the 
Supreme Court of the State of Oklahoma; the Honorable 
J u s t in  H in s h a w , District Judge Cleveland County District 
Court of Oklahoma, and the Board of Regents of the Uni­
versity of Oklahoma, to show cause why a writ of mandamus 
should not be issued against them in accordance with the 
prayers of said petition and why your petitioner should not 
have such other and further relief in the premises as may 
he just and meet.

T hurgood  M a r s h a l l ,

A m o s  T . H a u l ,

Attorneys for Petitioner.

W il l ia m  H . H a s t ie ,

E dw ard  E .  D u d l e y ,

M a r ia n  W y n n  P e r r y ,

Of Counsel.

January, 1948.



IN' THE

(Emirt of %  Inttefc States

T h e  H o n o rable  T h u r m a n  S . H u r s t , C h ie f  
J u s t i c e ; T h e  H o n o rable  D e n v e r  N. 
D a v is o n , V ic e  C h ie f  J u s t i c e ; T h e  
H o n o rable  F l e t c h e r  R i l e y , W a y n e  
W . B a y l e s s , E a r l  W e l c h , N. S . C o r n , 
B e n  A r n o ld , T h o m a s  L .  G ib s o n , an d  
J o h n  L u t t r e l l , A sso ciate  J u s t ic e s  of 
t h e  S u p r e m e  C o u r t  o f  t h e  S t a t e  of 
O k l a h o m a ; T h e  H o n o rable  J u s t in  
H in s h a w , D is t r ic t  J ud ge  C l e v e l a n d  
C o u n t y  D is t r ic t  C ou rt  of  O k l a h o m a  
a n d  t h e  B oard of R e g e n t s  of t h e  U n i­
v e r s it y  of  O k l a h o m a .

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

The petition of Ada Lois Sipuel Fisher respectfully 
shows that:

I.
Petitioner, Ada Lois Sipuel Fisher, was petitioner in 

the case of Ada Lois Sipuel v. Board of Regents of the Uni-

October Term, 1947

No. Miscellaneous

A d a L ois  S ip u e l  F is h e r ,

v-
Petitioner.

Petition for a Writ of Mandamus.

3



4

versify of Oklahoma, et al., No. 369-October Term-1947, on 
writ of certiorari to the Supreme Court of the State of 
Oklahoma. Petitioner is a citizen of the United States and 
State of Oklahoma and is a resident of the State of Okla­
homa. The Hon. T h u r m a n  S. H u r s t , and the Hon. D e n v e r  

N. D a v iso n  are respectively the duly elected, qualified and 
acting Chief Justice and Vice Chief Justice of the Supreme 
Court of the State of Oklahoma; the Hon. F l e t c h e r  R i l e y , 

W a y n e  W . B a y l e s s , E a r l  W e l c h , N. S. C o r n , B e n  A r n o ld , 

T h o m a s  L . G ib so n  and J o h n  L u t t r e l l  are the duly elected, 
qualified and acting Associate Justices of the Supreme 
Court of the State of Oklahoma; the Hon. J u s t in  H in s h a w  

is the duly qualified District Judge of the Cleveland County 
District Court of Oklahoma; the Board of Regents of the 
University of Oklahoma is an administrative agency of the 
State and exercises overall authority with reference to the 
regulation of instruction and admission of students in the 
University, a corporation organized as a part of the educa­
tional system of the state and maintained by appropria­
tions from the public funds of the State of Oklahoma.

II.

The purpose of this petition is to obtain from this Hon­
orable Court, under authority of Section 262 of the Judicial 
Code (28 U. S. C. 377) and Section 234 of the Judicial Code 
(28 U. S. C. 342) a writ of mandamus in the nature of pro­
cedendo to compel compliance with and to prevent the re­
fusal to abide by the opinion and judgment of this Honor­
able Court entered on January 12, 1948, on which mandate 
was issued forthwith in No. 369-October Term, 1947, en­
titled Ada Lois Sipuel v. Board of Regents of the Univer­
sity of Oklahoma, et al. Petitioner herein was the peti­
tioner in said case.



5

As appears from the record of this Honorable Court, 
Case No. 369, October Term, 1947, entitled Ada Lois Sipuel 
v. Board of Regents of University of Oklahoma, et al., was 
argued before this Honorable Court on January 8,1948 and 
was decided on January 12, 1948, in a Per Curiam opinion 
which summarized the nature and history of the litigation 
as follows:

“ On January 14, 1946, the petitioner, a Negro, 
concededly qualified to receive the professional legal 
education offered by the State, applied for admission 
to the School of Law of the University of Oklahoma, 
the only institution for legal education supported and 
maintained by the taxpayers of the State of Okla­
homa. Petitioner’s application for admission was 
denied, solely because of her color.

Petitioner then made application for a writ of 
mandamus in the District Court of Cleveland County, 
Oklahoma. The writ of mandamus was refused, and 
the Supreme Court of the State of Oklahoma affirmed
the judgment of the District Court. ____Okla._____,
180 P. 2d 135. We brought the case here for review.”

In these circumstances this Court in its aforesaid Per 
Curiam opinion expressly stated and directed that the State 
of Oklahoma must provide for the petitioner legal education 
afforded by a state institution in conformity with the equal 
protection clause of the Fourteenth Amendment “ and pro­
vide it as soon as it does for applicants of any other group.”  
The cause was remanded and the mandate of this Court 
was issued forthwith to the Supreme Court of Oklahoma 
for proceedings not inconsistent with this opinion.

III.



6

The requirement of this Court that the State of Okla­
homa act on behalf of petitioner as soon as it does for 
applicants of any other group was in fact and plainly a 
material part of the judgment of this Court. The case was 
argued on January 8, 1948. During argument counsel for 
respondents stated in open court that white students now 
applying to enter the law school of the University of Okla­
homa would be admitted on a day certain during this month 
of January, 1948. This Court rendered its opinion four 
days after argument and ordered that the mandate issue 
forthwith. It was the plain intendment of this Court and 
requirement of its decree that the State discharge its obli­
gation to petitioner at a time not later than the opening of 
the new law school term at the University of Oklahoma in 
January, 1948.

. IV.

V.

The Law School of the University of Oklahoma is now 
inviting white persons qualified to enter upon the study of 
law to register for such instruction January 26, 1948, and 
to begin the course of legal instruction at said University 
on January 29, 1948.

VI.

Upon receipt of the mandate of this Honorable Court, 
the Supreme Court of Oklahoma considered the effect to be 
given to the said mandate, added the Oklahoma State 
Regents for Higher Education as a party to the litigation, 
on January 17, 1948, entered an order purporting to be con­
sistent with the mandate of this Court and sent its mandate



7

to the District Court of Cleveland Comity, Oklahoma. The 
petitioner had no opportunity to be heard in connection 
with any of these proceedings. The order of the Supreme 
Court of Oklahoma as issued January 17, 1948 provides:

‘ ‘ Said Board of Regents is hereby directed, under 
the authority conferred upon it by the provisions of 
Art. 13-A, Constitution of the State of Oklahoma, and 
Title 70 0. S. 1941, Secs. 1976,1979, to afford to plain­
tiff, and all others similarly situated, an opportunity 
to commence the study of law at a state institution 
as soon as citizens of other groups are afforded such 
opportunity, in conformity with the equal protection 
clause of the Fourteenth Amendment of the Federal 
Constitution and with the provisions of the Consti­
tution and statutes of this state requiring segregation 
of the races in the schools of this state. Art. 13, Sec. 
3, Constitution of Oklahoma; 70 0. S. 1941, Secs. 451- 
457.”

The full text of the opinion of said Court is attached hereto 
as “ Exhibit A ”  and prayed to be read in full.

VII.

The aforesaid order of January 17, 1948, contains mu­
tually contradictory provisions which prevent the execution 
of a material part of the mandate of this Court. The afore­
said order expressly limits petitioner opportunity to study 
law by requiring that said study of law must be in con­
formity with “ the provisions of the constitution and stat­
utes of this state requiring segregation of the races in the 
schools of this state. Art. 13, Sec. 3, Constitution of Okla­
homa; 70 0. S. 1941, Secs. 451-457.”  Among the sections 
of the Oklahoma Statutes thus cited is Section 456 which 
makes it a misdemeanor to teach white and colored students 
in the same institution. The only state institution offering



8

a legal education now or at any time material to this liti­
gation is the University of Oklahoma, an institution at 
which white students only are now enrolled. The plain 
intendment and the legal effect of the aforesaid order is to 
make it a violation of the said order to admit petitioner 
to the school of law of the University of Oklahoma, the only 
state institution offering professional training in law.

VIII.

Counsel for the State of Oklahoma admitted in argument 
of Case No. 369 before this Court on January 8, 1948 that 
no steps had then been taken by the executive or adminis­
trative officers of Oklahoma to organize or establish a sepa­
rate school of law for Negroes. Petitioner asks that this 
Court take judicial notice that the State of Oklahoma can­
not by January 29, 1948 establish, organize and make avail­
able to the petitioner a separate school of law which in 
comparison to the law school of the University of Oklahoma 
as that school is described in the Eecord of this litigation 
(Record, Case No. 369, October Term, 1947, p. 23) would 
afford the petitioner the equal protection of the law as re­
quired by the mandate of this Court.

IX.

It follows that the Supreme Court of Oklahoma by its 
own order, purportedly pursuant to the mandate of this 
Court, has forbidden the only course of action which would 
provide for the petitioner “ a legal education afforded by a 
state institution . . .  as soon as it does for applicants of any 
other group ’ ’ as ordered by the mandate of this Court. Such 
action of the Supreme Court of Oklahoma is a refusal to 
abide by the clear mandate of this Court.



9

A mandate of the Supreme Court of Oklahoma incorpor­
ating the order of the Court hereinbefore set forth was 
issued forthwith to the District Court of Cleveland County, 
Oklahoma. That court, in turn, purporting to carry out 
the mandates of this Court and of the Supreme Court of 
Oklahoma, on January 22, 1948 issued an order which is 
inconsistent both with the mandate of this Court and the 
mandate of the Supreme Court of Oklahoma and expressly 
retained jurisdiction of the case. The said order of the 
trial court is attached hereto as “ Exhibit B ”  and prayed 
to be read in full.

X.

XL

The aforesaid order of the trial court is inconsistent 
with the order of this Court in that it designates the estab­
lishment of a new and separate institution for the study of 
law as an available method of complying with the duty of 
the State in the premises and in that it designates as an 
acceptable alternative the denial to white students and to 
petitioner of the privilege of entering the School of Law of 
the University of Oklahoma at the normal time of matricu­
lation in January, 1948. The said order of the trial court 
insofar as it provides even conditionally for the admission 
of petitioner to the Law School of the University of 
Oklahoma is inconsistent with so much of the mandate of 
the Oklahoma Supreme Court as required that education be 
provided for petitioner only in conformity with the con­
stitutional and statutory requirements of Oklahoma regard­
ing segregation.



10

Neither before nor since the issuance of the orders of 
the state courts has petitioner been afforded the opportunity 
which this Court directed the State of Oklahoma to provide 
for her. The contradictory directions of the state courts 
purporting to carry out the mandate of this Court have not 
resulted in providing petitioner the relief to which she is 
entitled under the mandate of this Court, but have created 
such confusion and uncertainty with reference to the rights 
of the petitioner and the duties of the agencies of the state 
in connection therewith as to constitute a denial of the relief 
ordered by this Court.

XII.

XIII.

Petitioner will suffer irreparable and inestimable dam­
age by the judgments of the Supreme Court of Oklahoma 
and the District Court of Cleveland County, Oklahoma, for 
reasons set out above. The above-mentioned courts in re­
fusing to abide by the mandate of this Court and in retain­
ing jurisdiction of the case have left petitioner in the same 
position in relation to the enforcement of her rights by the 
Courts of Oklahoma as she was at the time the original 
action was filed.

W herefore, the petitioner prays:

(1) That a writ of mandamus issue from the Court 
directing the Honorable T h u r m a n  S. H u r s t , Chief 
Justice; The Honorable D e n v e r  N. D a v iso n , Vice 
Chief Justice; The Honorable F l e t c h e r  R i l e y , 

W a y n e  W. B a y l e s s , E a r l  W e l c h , N. S. C o r n , B e n



11

A r n o l d , T h o m a s  L .  G ib s o n , an d  J o h n  L u t t r e l l , 

Associate Justices of the Supreme Court of the 
State of Oklahoma, to issue an order to the District 
Court of Cleveland County, Oklahoma, requiring 
that Court to issue the writ of mandamus as prayed 
for in the original action, No. 369, October Term, 
1947.

(2) That a writ of mandamus issue from this Court 
directing the Honorable J u s t in  H in s h a w , Judge of 
the Cleveland County, Oklahoma, District Court, to 
issue the writ of mandamus as prayed for in the 
original action, No. 369, October Term, 1947.

(3) That a writ of mandamus issue from this Court 
directing the Board of Regents of the University 
of Oklahoma to admit petitioner forthwith as a reg­
ular first year student of the School of Law of the 
University of Oklahoma.

(4) That petitioner have such additional relief and 
process as may be necessary and appropriate in the 
premises.

Respectfully submitted,

T hurgood  M a r s h a l l ,

A m o s  T. H a l l ,

Attorneys for Petitioner.

W il l ia m  H . H a s t ie ,

M a r ia n  W y n n  P e r r y ,

E dw ard  R. D u d l e y ,

Of Counsel.



Bnpvmt (Enurt a! tit? Intted
O ctober Term, 1947 

N o . ......... , M iscellaneous

A da L ois S ip u e l  F is h e r ,
Petitioner,

v.
T h e  H o n o r able  T h u r m a n  S . H u r s t , C h ie f  

J u s t i c e ; T h e  H o n o r able  D e n v e r  N . 
D a v is o n , V ic e  C h ie f  J u s t ic e  ; T h e  
H o n o r able  F l e t c h e r  R il e y , W a y n e  
W. B a y l e s s , E ar l  W e l c h , N. S. C o r n , 
B e n  A r n o ld , T h o m a s  L .  G ib s o n , an d  
J o h n  L u t t r e l l , A sso cia t e  J u s t ic e s  of 
t h e  S u p r e m e  C o u rt  of t h e  S t a t e  of 
O k l a h o m a ; T h e  H o n o r able  J u s t in  
H in s h a w , D is t r ic t  J udge  C l e v e l a n d  
C o u n t y  D is t r ic t  C o u r t  of O k l a h o m a  
a n d  t h e  B oard of  R e g e n t s  of t h e  U n i­
v e r s it y  of O k l a h o m a .

BRIEF IN SUPPORT OF MOTION AND PETITION.

The history of the case and the nature of the action 
taken by the Supreme Court o f Oklahoma and the District 
Court of Cleveland County are set out in the petition for 
a writ of mandamus and will not be repeated here.

In this brief we shall discuss, first, the respects in which 
the action taken by the Supreme Court of Oklahoma and 
the District Court o f Cleveland County are inconsistent 
with the mandate of this Court and the resulting injury 
to petitioner, and, second, the propriety of mandamus as 
the remedy in this case.

13



14

L

The Supreme Court of Oklahoma and the District 
Court of Cleveland County have violated the mandate 
of this Court.

The action taken by the Supreme Court of Oklahoma 
and the District Court have violated the mandate of this 
Court in the following respects: (a) under the opinion and 
mandate of this Court, the oidy act remaining to be done 
by the Supreme Court of Oklahoma was the issuance of an 
order to the District Court of Cleveland County directing it, 
in turn, to issue the writ prayed for in the original peti­
tion; (b) the opinion and mandate of this Court required 
that the relief sought by petitioner be granted forthwith 
without any reconsideration of the segregation statutes 
previously relied on by the state; (c) the action taken by 
the Supreme Court of Oklahoma and the District Court 
denies petitioner a legal education now as required by the 
mandate of this Court.

On January 14, 1946, this petitioner made application to 
the University of Oklahoma for admission to the School 
of Law. It was the only school maintained by the tax­
payers of Oklahoma for the legal education of its citizens. 
Petitioner’s qualifications were admitted and have never 
been disputed. Her application was denied solely on the 
grounds of her race and color, in violation of the equal 
protection clause of the Fourteenth Amendment to the 
Federal Constitution.

Petitioner then applied to the District Court of Cleve­
land County, Oklahoma, for a writ of mandamus compelling 
the Board of Regents to admit her to the only law school 
maintained by the state. That court denied her the writ 
on the ground that such a writ would not issue since it



15

would compel these state officials to violate the segregation 
statutes of that state which carried a criminal penalty for 
non-compliance. The Supreme Court of Oklahoma affirmed 
this denial of the writ on this same ground. This Court on 
January 12, 1948, reversed the holding of the lower court 
and issued its mandate “ forthwith.”

Under the mandate of this Court petitioner was entitled 
to an order directing that she be admitted to the Univer­
sity of Oklahoma Law School for the term commencing 
January 29, 1948.

At the time of the decisions and orders of both the Su­
preme Court of Oklahoma and the District Court of Cleve­
land County there was only one institution maintained by 
the State for the legal education of its citizens, in which 
school white students were then eligible to enroll. The 
Per Curiam opinion of this Court stated that petitioner’s 
education must be furnished by the state as soon as it is 
furnished to other students.

It is a fact heretofore admitted by the state in argu­
ment before this Court, and alleged in the present petition 
that entering white students are to begin their legal studies 
at the University of Oklahoma on January 29, 1948.

To the time of filing this petition, three days before 
the new term at the Oklahoma University Law School, how­
ever, the petitioner has no assurance of a legal education 
to be provided by the State of Oklahoma pursuant to the 
clear mandate of this Court. She has not been admitted to 
any school and there is no law school other than the Univer­
sity of Oklahoma Law School maintained by the state.

While it is true that the District Court’s order purports 
to recognize petitioner’s right to a legal education on the 
same basis as white citizens, petitioner asserts that this 
right has been paid lip service and conceded to her through­



16

out the two years since she first applied for a legal educa­
tion. The recognition of this right, in a decree frustrating 
its exercise, leaves petitioner exactly where she was before 
the decision of this Court. Any decree which does not 
plainly and unequivocally direct her admission to the Uni­
versity of Oklahoma must fail to achieve compliance with 
the mandate of this Court.

In the light of the decision of this Court that the peti­
tioner must receive her legal education at the same time 
that it is offered to white students, the action of the State 
Supreme Court in requiring that this be done within the 
policy of segregation, when only one facility exists and 
time is of the essence, constitutes a clear violation of the 
mandate of this Court and of the ruling in Missouri ex rel. 
Gaines v. Canada, 305 U. S. 337.

Petitioner asks this Court to take judicial notice of the 
fact that it is completely impossible to set up, within a 
period of one week, a law school which would offer adequate 
facilities for the acquisition of the professional skills neces­
sary for the practice of the law. 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.1 Some of these are: a full-time 
faculty,2 a varied and inclusive curriculum,3 an adequate 
library, well-equipped building and several classrooms,4 a 
well-established, recognized law review and a moot court.5

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

2 Ibid.
3 Ibid.
4 Townes, Organization and Operation of a Law School, 2 Am. 

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

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



17

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 
group on the basis of race, automatically imputes a badge 
of inferiority to the excluded group—an inferiority which 
has no basis in fact.6 The role of the lawyer, moreover, is 
often that of a law-maker, a “ social mechanic” , and a 
“ social inventor.” 7 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.8 Quite aside from consideration of those factors 
which are necessary for a proper legal education, it is evi­
dent, on its face, that one student cannot constitute a law 
school.

The core of the decision of the Oklahoma courts, prior 
to the decision of this Court, was that the segregation 
statutes of the State of Oklahoma were an effective bar to 
petitioner’s right to attend the University of Oklahoma, 
despite the Fourteenth Amendment. The present position 
of the Oklahoma courts is to the same effect despite the 
mandate of this Court. For example, the decision of the 
Supreme Court of Oklahoma states:

‘ ‘ Said Board of Regents is hereby directed, under 
the authority conferred upon it by the provisions of 
Art. 13-A, Constitution of the State of Oklahoma, 
and Title 70 O. S. 1941, Sees. 1976, 1979, to afford to

6 The Black and White of Rejections for Military Service, Ameri­
can 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 Monograph, 1929.

7 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.

8 Simpson, op. cit. p. 1069. See also Stone, The Public Influence 
of the Bar, 48 Harv. L. Rev. 1.



18

plaintiff, and all others similarly situated, an op­
portunity to commence the study of law at a state 
institution as soon as citizens of other groups are 
afforded such opportunity, in conformity with the 
equal protection clause of the Fourteenth Amend­
ment of the Federal Constitution and with the pro­
visions of the Constitution and statutes of this stat,e 
requiring segregation of the races in the schools of 
this state. Art. 13, See. 3, Constitution of Okla­
homa; 70 0. S. 1941, Secs. 451-457.”  (Italics added.)

The order of the District Court of Cleveland County 
states:

“ I t  is , t h e r e f o r e , ordered, a d jud g ed  a n d  decreed  
b y  t h is  C o u r t  that unless and until the separate 
school of law for negroes, which the Supreme Court 
of Oklahoma in effect directed the Oklahoma State 
Regents for Higher Education to establish . . .  is 
established and ready to function at the designated 
time applicants of any other group may hereafter 
apply for admission to the first year class of the 
School of Law of the University of Oklahoma, . . . 
the defendants, Board of Regents of the University 
of Oklahoma, et al., be and the same are hereby 
ordered and directed to either:

(1) enroll plaintiff . . . , or
(2) not enroll any applicant of any group in said 

class until said separate school is established 
and ready to function.”

It is therefore clear that the action of the Supreme Court 
of Oklahoma and the District Court of Cleveland County 
violates the mandate of this Court and leaves the petitioner 
in relation to the enforcement of her rights by the Oklahoma 
courts in the same position she was in when she originally 
applied to those courts in 1946.



19

II.

Mandamus Is the appropriate rem edy in this case.

The authority of this Court to issue a writ of mandamus 
is derived from Section 262 of the Judicial Code (36 Stat. 
1162, 28 U. S. C. 377), which provides that the federal courts 
“ shall have power to issue all writs not specifically pro­
vided for by statute, which may be necessary for the exer­
cise of their respective jurisdictions, and agreeable to the 
usage and principles of law. ’ ’

Mandamus is the appropriate remedy in this case for 
the reason that: (1) the writ will always lie to compel 
obedience to a mandate of an appellate court; (2) review 
on appeal is not an adequate remedy because of the delay 
and injury to petitioner attendant upon that procedure.

Mandamus W ill A lw ays Lie to Compel Obedience 
to a M andate o f This Court.

The right of this Court to issue writs of mandamus in 
aid of its appellate jurisdiction has been recognized in a 
long, unbroken line of decisions. In 1859 Mr. Chief Justice 
T a n e y , in the case of United States v. Fossatt, 21 How. 445, 
stated: “ But when a case is sent to the court below by 
a mandate from this court, no appeal will lie from any order 
or decision of the court until it has passed its final decree in 
the case. And if the court does not proceed to execute the 
mandate, or disobeys and mistakes its meaning, the party 
aggrieved may, by motion for a mandamus, at any time, 
bring the errors or omissions of the inferior court before 
this court for correction.”

The reasons for this rule are clear. Once a case has 
been decided by this Court and has been remanded to the 
lower court, the lower court is bound by the mandate of this



20

Court as the law of the ease and must carry it into execu­
tion pursuant to said mandate. The lower court cannot 
vary it or examine it for any purpose other than execution 
or give any other or further relief, or review it even for 
apparent error, upon any matter decided on appeal, or 
intermeddle with it, further than to settle so much as has 
been remanded.9

Where, as here, both the State Supreme Court and the 
District Court, while purporting to follow the mandate of 
this Court, have in fact refused to abide by the mandate of 
this Court, the very existence of government by law is 
threatened and a writ of mandamus should issue from this 
Court.

But for the decision of this Court, its mandate and the 
authority of this Court to issue mandamus, petitioner’s 
federally protected rights are no nearer realization than 
at the time she first applied for relief in the Cleveland 
County District Court. The courts and the administrative 
agencies of the State of Oklahoma continue effectively to 
deprive petitioner of her federally protected rights in open 
defiance of the Constitution of the United States and the 
mandate of this Court. Petitioner is left remediless with­
out the affirmative enforcement of her rights by this Court 
through the issuance of the writ of mandamus as prayed 
for in her petition.

9 Ex Parte Texas, 315 U. S. 8 ; Fed. Communications Commis­
sion v. Pottsville, 309 U. S. 134; Ex Parte Union Steamboat Co., 
178 U. S. 317; In re Potts, 166 U. S. 263; In re Sandford Fork and 
Tool Co., 160 U. S. 247; Ex Parte Sibbald, 12 U. S. 488; U. S. v. 
Fossatt, 21 How. 445.



Conclusion.

W h e r e fo r e , i t  is  r e s p e c tfu lly  su b m itte d  th a t  th e  p e t i­

tio n  f o r  w r it  o f  m an d a m u s be iss u e d  a s  p r a y e d  f o r  an d  th a t  

th e  p e t it io n e r  be g iv e n  w h a te v e r  fu r th e r  r e lie f  is  m e e t an d  

p ro p e r .

T httrgood M a r s h a l l ,

A m o s  T . H a l l ,

Attorneys for Petitioner.

W il l ia m  H . H a s t ie ,

M a r ia n  W y n n  P e r r y ,

E dw ard  E . D u d l e y ,

Of Counsel.

January, 1948.



Exhibit A.

IN THE

SUPREME COURT OF THE STATE OF OKLAHOMA

A da  L ois S ip u e l , \

Plaintiff in Error, I

vs. I

B oard op R e g e n t s  of t h e  U n iv e r s it y  of \ No. 32756 
O k l a h o m a , G eorge L .  C ro ss, M a u r ic e  I 

H. M e r r il l , G eorge W a d s a c k , and I 
R o y  G it t in g e r , |

Defendants in Error. J

S y l l a b u s

1. The decision of the Supreme Court of the United 
States upon an issue of law involving a right guaranteed 
a person by the Constitution of the United States is bind­
ing upon the State of Oklahoma. Upon a reversal and re­
mand of a cause or proceeding involving such right, this 
court, when ordered and directed so to do, will proceed not 
inconsistent with the opinion of the Supreme Court of the 
United States.

2. It is the State’s policy, established by Constitution 
and statutes, to segregate white and negro races for pur­
pose of education at institutions of higher learning.

3. It is the duty of the Supreme Court of the State of 
Oklahoma to maintain State’s policy of segregating white 
and negro races for purpose of education so long as it does 
not conflict with Federal Constitution.



24

4. It is the duty of the Oklahoma State Regents for 
Higher Education to afford citizens of the negro race op­
portunity for education in conformity with the equal pro­
tection clause of the Fourteenth Amendment to the Federal 
Constitution and with the provisions of the Constitution 
and statutes of this state requiring segregation of the races 
in the schools of the state. Art. 13, Sec. 3, Constitution of 
Oklahoma; 70 0. S. 1941 Secs. 451 et seq.

A p p e a l  F b o m  D is t r ic t  C o u r t  op C l e v e l a n d  C o u n t y  

O k l a h o m a

Hon. B e n  T. W il l ia m s , Judge

Regents of Higher Education of the State of Oklahoma 
ordered and directed to proceed according to law.

Mandate directed to issue forthwith. Trial Court or­
dered and directed to proceed not inconsistent with the 
opinion of the Supreme Court of the United States and this 
opinion.

A m o s  T. H a l l , Tulsa, Oklahoma

T h urgood  M a r s h a l l  an d

R o ber t  C . C a r te r  of New York, N. Y. For P la in t i f f  in  

Error.

F r a n k l in  H. W il l ia m s  of New York, N. Y. of Counsel

M a c  Q. W il l ia m s o n , Attorney General

F red  H a n s e n , Asst. Attorney General

M a u r ic e  H. M e r r il l  and J o h n  B. C h e a d l e , both of Nor­
man, Oklahoma. For Defendants in Error.



25

Per Curiam:

On April 29, 1947, this court affirmed the District Court 
of Cleveland County, Oklahoma, denying a writ of man­
damus sought by Ada Lois Sipuel, a negro, in a proceeding 
by which she sought to compel her enrollment and admis­
sion as a student in the Law School of the University of 
Oklahoma.

The Supreme Court of the United States reversed the 
judgment of this court by its opinion which follows:

in  THE

SUPREME COURT OF THE UNITED STATES 

Monday, January 12, 1948 

No. 369— October Term, 1947 

“ A da L ois S ip u e l ,

Petitioner,
v .

B oard of R e g e n t s  of t h e  U n iv e r s it y  

of O k l a h o m a , et al.,
Respondents.

On Writ of Certiorari to the Supreme 
Court of the State of Oklahoma

“ Per Curiam

“ On January 14, 1946, the petitioner, a Negro, con- 
cededly qualified to receive the professional legal education 
offered by the State, applied for admission to the School 
of Law of the University of Oklahoma, the only institution 
for legal education supported and maintained by the tax­
payers of the State of Oklahoma. Petitioner’s application 
for admission was denied solely because of her color.



26

“ Petitioner tlien made application for a writ of man­
damus in the District Court of Cleveland County, Oklahoma. 
The writ was refused, and the Supreme Court of the State 
of Oklahoma affirmed the judgment of the District Court.
______  Okla. ______ , 180 P. 2d 135. We brought the case
here for review.

“ The petitioner is entitled to secure legal education 
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, 305 U. S. 337 
(1938).

“ The judgment of the Supreme Court of Oklahoma is 
reversed and the cause is remanded to that court for pro­
ceedings not inconsistent with this opinion.

“ The mandate shall issue forthwith.”

The Supreme Court of the United States in the Gaines 
case, citing many of its former opinions, reaffirmed the 
Constitutions and laws of states creating separate schools, 
saying:

“ In answering petitioner’s contention that this 
discrimination constituted a denial of his constitu­
tional right, the state court has fully recognized the 
obligation of the state to provide negroes with advan­
tages for higher education substantially equal to the 
advantages offered to 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.”



27

That court has not since held to the contrary.

The Oklahoma State Regents for Higher Education is 
the only authority empowered by Constitution and statutes, 
on behalf of the State of Oklahoma, to provide legal edu­
cation in a state institution for petitioner as soon as appli­
cants of any other group of persons of this state may be 
enrolled and admitted to secure legal education in a state 
institution.

On January 15, 1948, the said Board filed in this court 
its motion seeking to be made a party and requesting us to 
define its powers and duties and direct it in the premises. 
Accordingly, on January 16, 1948, the said Board of Re­
gents, by order of this court, was made a party to the pro­
ceedings.

Said Board of Regents is hereby directed, under the 
authority conferred upon it by the provisions of Art. 13-A, 
Constitution of the State of Oklahoma, and Title 70 0. S. 
1941, Secs. 1976, 1979, 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 are afforded such opportunity, in conformity with 
the equal protection clause of the Fourteenth Amendment 
of the Federal Constitution and with the provisions of the 
Constitution and statutes of this state requiring segregation 
of the races in the schools of this state. Art. 13, Sec. 3, 
Constitution of Oklahoma; 70 0. S. 1941, Secs. 451-457.

Reversed with directions to the trial court to take such 
proceedings as may be necessary to fully carry out the 
opinion of the Supreme Court of the United States and this 
opinion. The mandate is ordered to issue forthwith.

Reversed.

H u r s t , C. J., D a v iso n , V. C. J., R il e y , B a y l e s s , W e l c h , 

G ib s o n , A r n o ld , L u t t r e l l , JJ. co n cu r.



28

Exhibit B.

IN THE

DISTRICT COURT OF CLEVELAND COUNTY, 

S t a t e  op O k l a h o m a .

A da L o is  S ip u e l , \

Plaintiff, 1

vs. I

B oakd op R e g e n t s  op t h e  U n iv e r s it y  op  \ ]^0 - 44^07  

O k l a h o m a , G eorge L. C ro ss, M a u r ic e  [

H. M e r r il l , G eorge W ad sac k , a n d  \
R o y  G it t in g e r , I

Defendants. I

J o u r n a l  E n t r y

N ow  on this, th e ____day of January, 1948, the above-
entitled cause came on to be heard by this court on the 
January 17,1948 opinion and mandate of the Supreme Court 
of the State of Oklahoma herein, reversing the decision 
rendered by this court at the trial of said cause and direct­
ing it

“ to take such proceedings as may be necessary to 
fully carry out the opinion of the Supreme Court of 
the United States and this opinion.”

From an examination of said opinion and mandate, this 
court finds:

1. That the material part of the opinion of the Supreme 
Court of the United States, above referred to (said opinion



29

being quoted in full in the instant opinion of the Supreme 
Court of Oklahoma), is as follows:

“ The petitioner is entitled to secure legal education 
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 edu­
cation 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, 305 IT. S. 337 (1938).
“ The judgment of the Supreme Court of Oklahoma 
is reversed and the cause is remanded to that court 
for proceedings not inconsistent with this opinion.”

2. That the Supreme Court of Oklahoma found in its 
instant opinion that in the opinion of the Supreme Court 
of the United States in the Gaines case, supra (which case 
is cited with approval by the Supreme Court of the United 
States in its instant opinion), said court reaffirmed the 
constitutional validity of state laws providing for the edu­
cation of the negro and white races,

“ by furnishing equal facilities in separate schools, a 
method the validity of which has been sustained by 
our decisions.”

3. That the Supreme Court of Oklahoma, after in effect 
stating that the Oklahoma State Regents for Higher Edu­
cation were the only authority empowered by law to estab­
lish such a separate school, directed said regents

“ to afford to plaintiff, and all others similarly situ­
ated, an opportunity to commence the study of law 
at a state institution as soon as citizens of other 
groups are afforded such opportunity, in conformity 
with the equal protection clause of the Fourteenth 
Amendment of the Federal Constitution and with the 
provisions of the Constitution and statutes of this



30

state requiring segregation of the races in the schools 
of this state.”

4. That the Supreme Court of Oklahoma did not direct 
this court as to what judgment should be rendered thereby 
other than to state, as aforesaid, that this court’s judgment 
at the trial, of this case was reversed, and that this court 
should

“ take such proceedings as may be necessary to fully 
carry out the opinion of the Supreme Court of the 
United States and this opinion.”

5. That in the original opinion of the Supreme Court of 
the State of Oklahoma herein (180 Pae. (2d) 135), decided 
June 24, 1947, said court quoted the following language 
from the decision of the Supreme Court of the United States 
in the Gaines case:

“ We are of the opinion that the ruling [of the Su­
preme Court of Missouri] was error, and that peti­
tioner 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.” ,

and held:

“ The reasoning and spirit of that decision [the 
Gaines decision] of course is applicable here, that is, 
that the state must provide either a proper legal 
training for petitioner in the state, or admit peti­
tioner to the University Law School.”

6. That the Supreme Court of Oklahoma, however, took 
the position in its said original opinion that the State of 
Oklahoma was not obligated to provide the plaintiff, Ada 
Lois Sipuel (now Mrs. Warren W. Fisher), such “ legal 
training”  until she had applied to the Oklahoma State 
Regents for Higher Education for legal training at a sep­



31

arate state institution or ‘ 4substantial notice”  had been 
given said regents as to there being at least some “ patron­
age”  for such an institution.

7. That the above position of the Supreme Court of 
Oklahoma as to the necessity of such an application or 
notice was in effect rejected by the Supreme Court of the 
United States in its instant opinion, wherein it is stated 
that plaintiff is entitled “ to secure legal education afforded 
by a state institution, ’ ’ and that the state must provide such 
education 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.”

I t  is , th e r e f o r e , ordered, ad ju dg ed  a s d  decreed  b y  t h is  
C o u rt  that unless and until the separate school of law for 
negroes, which the Supreme Court of Oklahoma in effect 
directed the Oklahoma State Regents for Higher Education 
to establish

“ with advantages for education substantially equal 
to the advantages afforded to white students, ’ ’

is established and ready to function at the designated time 
applicants of any other group may hereafter apply for ad­
mission to the first-year class of the School of Law of the 
University of Oklahoma, and if the plaintiff herein makes 
timely and proper application to enroll in said class, the 
defendants, Board of Regents of the University of Okla­
homa, et ah, be, and the same are hereby ordered and di­
rected to either:

(1) enroll plaintiff, if she is otherwise qualified, in the 
first-year class of the School of Law of the Uni­
versity of Oklahoma, in which school she will be 
entitled to remain on the same scholastic basis as



32

other students thereof until such a separate law 
school for negroes is established and ready to func­
tion, or

(2) not enroll any applicant of any group in said class 
until said separate school is established and ready 
to function.

I t  is  f u r t h e r  ordered , adju dged  an d  decreed  that if such 
a separate law school is so established and ready to function, 
the defendants, Board of Regents of the University of Okla­
homa, et ah, be, and the same are hereby ordered and di­
rected to not enroll plaintiff in the first-year class of the 
School of Law of the University of Oklahoma.

The cost of this case is taxed to defendants.

This court retains jurisdiction of this cause to hear and 
determine any question which may arise concerning the 
application of and performance of the duties prescribed by 
this order.

/ s /  J u s t in  H in s h a w  

Judge



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