Gray v. University of Tennessee Board of Trustees Transcript of Record

    TRANSCRIPT OF RECORD

Supreme Court of the United States

OCTOBER TERM, 1951

No. 120

GENE MITCHELL GRAY, LINCOLN ANDERSON 
BLAKENEY, JOSEPH HUTCH PATTERSON AND 
JACK ALEXANDER, APPELLANTS,

vs.

THE BOARD OF TRUSTEES OF THE UNIVERSITY 
OF TENNESSEE, ETC., ET AL.

APPEAL. FROM  U N IT E D  STATES DISTRICT COURT FOR T H E  EASTERN 
DISTRICT OE TEN N E SSE E

FILED JUNE 15, 1951.

Jurisdiction Postponed October 15, 1951.



SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1951

No. 120

GENE MITCHELL GRAY, LINCOLN ANDERSON 
BLAKENEY, JOSEPH HUTCH PATTERSON AND 
JACK ALEXANDER, APPELLANTS,

vs.
THE BOARD OF TRUSTEES OF THE UNIVERSITY 

OF TENNESSEE, ETC., ET AL.

A PPEAL FROM U N ITE D  STATES DISTRICT COURT FOR T H E  EASTERN

JACK ALEXANDER, APPELLANTS,
vs.

DISTRICT OF T EN N ESSEE

INDEX
Original Print

Record from U.S.D.C. for the Eastern District of Tennes­
see, Northern Division ...................................................... 1 1

Complaint .......................................................................  1 1
Exhibit “A”—Letter of R. F. Thomason to Mr.

Lincoln Anderson Blakeney, September 6, 1950 21 21
Exhibit “B”—Letter of Carl A. Cowan to The 

University of Tennessee Board of Trustees, De­
cember 2, 1950........................................................  22 22

Exhibit “C”—Leter of C. E. Brehm to Mr. Carl
A. Cowan, December 7, 1950 .................................  24 24

Exhibit “D”—Resolution adopted by Board of
Trustees ...................................................................  25 25

Answer ........................................................................... 27 25
Plaintiff’s motion for judgment on the pleadings.......  31 28
Order designating three-judge court.................................  32 28

J udd & Detwbider ( I no.), P rinters, W ashington, D. C., N ov. 5, 1951.



11 INDEX

Record from U.S.D.C. for the Eastern District of Tennes­
see, Northern Division—Continued Original

Certificate of clerk of notice of hearing set for March 
1, 1951 on motion for judgment on the pleadings,
etc...................................................................................  33

Certificate of clerk of notice of hearing reset for March 
13, 1951 on motion for judgment on the pleadings,
etc...................................................................................  36

Order of hearing on motion for judgment on the plead­
ings by three-judge c o u r t ..........................................  39

Opinion, Miller, J ...........................................................  40
Order of three-judges by which two judges withdrew. 45 
Opinion of District Court sitting as one judge, Tay­

lor, J .............................................................................  46
Petition for appeal ........................................................ 54
Statement required by Paragraph 2, Rule 12 of the 

rules of the Supreme Court (omitted in printing) . . 56
Order allowing appeal ..................................................  58
Citation on appeal................. (omitted in printing) . . 60
Assignment of errors and prayer for reversal..............  62
Praecipe ................................. (omitted in printing) . . 93
Clerk’s certificate of cash money deposit as security

for costs of appeal (omitted in printing)................  95
Supplementary praecipe . . . .  (omitted in printing) . . 96
Order amending order allowing appeal........................  98
Affidavit of service of statement opposing jurisdic­

tion (omitted in printing) ....................................  102
Clerk’s certificate..................... (omitted in printing). . 104

Statement of points to be relied upon and designation of
Order postponing question of jurisdiction.........................  107

parts of record to be p rin ted ............................................  105



1

[fol. 1]
IN THE UNITED STATES DISTRICT COURT FOR THE 

EASTERN DISTRICT OF TENNESSEE, NORTHERN 
DIVISION

Civil Action No. 1567

Ge n e  M it c h e l l  G ray, L in co ln  A nderson B la k en ey , J o­
s e p h  H u t c h  P atterson , J ack A lexander, Plaintiffs,

v.

T h e  B oard of T rustees of t h e  U niversity  of T e n n e sse e , 
consisting of G ordon B ro w nin g , Governor of the State of 
Tennessee, J ames A. B arksdale, Commissioner of Edu­
cation of the State of Tennessee, E dward J ones, Com­
missioner of Agriculture of the State of Tennessee, 
Cloide E verett B r e h m , President of The University of 
Tennessee, F rank  R. A h lg r en , T homas II. A l l e n , Clyde 
B. A u s t in , H arry S. B erry, W . P. C ooper, W illisto n  M. 
Cox, E. W . E ggleston, J am es A. F ow ler, J am es T . G ran- 
bery, S am J. M cA llester , W assell R an do lph , George C. 
T aylor, I. B. T igrett, Charles R. V olz, as member trus­
tees, who together, as such, constitute The Board of 
Trustees of The University of Tennessee, T h e  U nivers­
ity  of T e n n e sse e , a corporation with its chief office in 
Knox County, Tennessee, at Knoxville c/o Cloide 
E verett B r e iim , President, Cloide E verett  B r e h m , 
E u g en e  A. W aters, W illia m  H enry  W ic k e r , R ichm ond  
F rederick  T hom ason , Defendants 
[File endorsement omitted.]

C om plaint— Piled January 12, 1951
1. (a) The jurisdiction of this Court is invoked under 

Title 28, United States Code, section 1331. This action 
arises under the Fourteenth Amendment of the Constitu­
tion of the United States, section 1, and the Act of May 31, 
1870, Chapter 114, section 16, 16 Stat. 144 (Title 8, United 
States Code, section 41), as hereinafter more fully appears. 
The matter in controversy exceeds, exclusive of interest 
and costs, the sum or value of Three Thousand ($3,000.00) 
Dollars.

1— 120



2

[fol. 2] (b) The jurisdiction of the Court is also invoked
under Title 28, United States Code, section 1343. This 
action is authorized by the Act of April 20, 1871, Chapter 
22, section 1, 17 Stat. 13 (Title 8, United States Code, 
section 43), to be commenced by any citizen of the United 
States or other person within the jurisdiction thereof to 
redress the deprivation, under color of a state law, statute, 
ordinance, regulation, custom or usage, of rights, privileges 
and immunities secured by the Fourteenth Amendment of 
the Constitution of the United States, section 1, and by the 
Act of May 31, 1870, Chapter 114, section 16, 16 Stat. 144 
(Title 8, United States Code, section 41), providing for 
the equal rights of citizens and of all other persons within 
the jurisdiction of the United States, as hereinafter more 
fully appears.

(c) The jurisdiction of this Court is also invoked under 
Title 28, United States Code, section 2281. This is an action 
for an interlocutory injunction and a permanent injunc­
tion restraining the enforcement, operation and execution 
of statutes of the State of Tennessee by restraining the 
action of defendants, officers of such State, in the enforce­
ment and execution of such statutes and of an order made 
by The Board of Trustees of The University of Tennessee, 
being composed of the following member trustees, the de­
fendants, Gordon Browning, Governor of the State of 
Tennessee, James A. Barksdale, Commissioner of Educa­
tion of the State of Tennessee, Edward Jones, Commis­
sioner of Agriculture of the State of Tennessee, Cloide 
Everett Brehm, President of The University of Tennessee, 
Frank R. Ahlgren, Thomas H. Allen, Clyde B. Austin, 
Harry S. Berry, W. P. Cooper, Williston M. Cox, E. W. 
Eggleston, James A. Fowler, James T. Granbery, Sam J. 
McAllester, "Wassell Randolph, George C. Taylor, I. B. 
Tigrett, and Charles R. Volz, who together as such trustees 
constitute The Board of Trustees of The University of 
Tennessee, and who are hereinafter referred to as defendant 
The Board of Trustees of The University of Tennessee, act­
ing as an administrative board or commission under statutes 
of such state, as hereinafter more fully appears.

2. Plaintiffs Gene Mitchell Gray, Lincoln Anderson 
Blakeney, Joseph Hutch Patterson, and Jack Alexander



3

are citizens of the United States and of the State of Ten­
nessee, are residents of and domiciled in the city of Knox­
ville of Knox County in the State of Tennessee, and are 
members of the Negro race.
[fol. 3] 3. (a) Plaintiff Gene Mitchell Gray is a citizen
and resident of the State of Tennessee, is twenty-two years 
of age, is of good health and moral character, and is fully 
qualified in all lawful and proper respects for admission 
to the Graduate School of The University of Tennessee. He 
has completed an approved high school course of four 
years at Swift Memorial High School in the City of Kog- 
ersville, Tennessee, a duly accredited high school. He is 
a graduate of, and has received the degree of Bachelor of 
Science in 1950 from Knoxville College in the City of Knox­
ville, Tennessee, a duly accredited College having a program 
similar to that of the College of Liberal Arts of The Uni­
versity of Tennessee. He has at all times material herein 
and in all particulars met all of the qualifications neces­
sary for admission as a graduate student to the Graduate 
School of The University of Tennessee, which facts de­
fendants do not deny. He is now, and at all times material 
herein was and has been, ready, willing and able to pay 
all lawful charges and fees requisite to his admission, and 
is now, and at all times material herein was and has been, 
ready, willing and able to comply with all lawful rules and 
regulations requisite to his admission therein.

(b) Plaintiff Lincoln Anderson Blakeney is a citizen 
and resident of the State of Tennessee, is twenty-nine years 
of age, is of good health and moral character, and is fully 
qualified in all lawful and proper respects for admission 
as an undergraduate student in law to the College of Law 
of The University of Tennessee. He has completed an 
approved high school course of four years at Austin High 
School in the City of Knoxville, Tennessee, a duly accredited 
high school. He is a graduate of, and has received the 
degree of Bachelor of Arts in 1947 from Knoxville College 
in the City of Knoxville, Tennessee, a duly accredited Col­
lege having a program similar to that of the College of 
Liberal Arts of The University of Tennessee. He is also 
a graduate of, and has received the degree of Master of 
Arts in the field of Sociology from Atlanta University in 
the City of Atlanta, Georgia, a duly accredited University.

2— 120



4

He has at all times material herein, and in all particulars 
met all the qualifications necessary for admission as an 
undergraduate student in law to the College of Law of 
The University of Tennessee, which facts defendants do 
not deny. He is now, and at all times material herein was 
and has been, ready, willing and able to pay all lawful 
charges and tuition requisite to his admission, and is now, 
[fol. 4] and at all times material herein was and has been, 
ready, willing and able to comply with all lawful rules and 
regulations requisite to his admission therein. He is also 
a veteran of World War II, and was honorably discharged 
from the United States Army with the rank of First Ser­
geant.

(c) Plaintiff Joseph Hutch Patterson is a citizen and 
resident of the State of Tennessee, is twenty-eight years 
of age, is of good health and moral character, and is fully 
qualified in all lawful and proper respects for admission 
as an undergraduate student in law to the College of Law 
of The University of Tennessee. He has completed an 
approved high school course of four years at Douglas High 
School in the City of Kingsport, Tennessee, a duly accred­
ited high school. He is a graduate of, and has received the 
degree of Bachelor of Science in 1950 from West Virginia 
State College in the City of Institute, West Virginia, a 
duly accredited College having a program similar to that 
of the College of Liberal Arts of The University of Ten­
nessee. He has at all times material herein and in all par­
ticulars met all the qualifications necessary for admission 
as an undergraduate student in law to the College of Law 
of The University of Tennessee, which facts defendants 
do not deny. He is now, and at all times material herein 
was and has been ready, willing and able to pay all lawful 
charges and tuition requisite to his admission, and is now, 
and at all times material herein was and has been, ready, 
willing and able to comply with all lawful rules and regu­
lations requisite to his admission therein. He is also a 
veteran of World War II, and was honorably discharged 
from the United States Navy with the rank of Petty 
Officer, 2nd Class.

(d) Plaintiff Jack Alexander is a citizen and resident 
of the State of Tennessee, is twenty-eight years of agey, 
is of good health and moral character, and is fully quali-



lied in all lawful and proper respects for admission as a 
graduate student to the Graduate School of The University 
of Tennessee. He has completed an approved high school 
course of four years at Austin High School in the City 
of Knoxville, Tennessee, a duly accredited high school. 
He is a graduate of, and has received the degree of Bachelor 
of Arts in 1950 from Knoxville College in the City of Knox­
ville, Tennessee, a duly accredited College having a pro- 
[fol. 5] gram similar to that of the College of Liberal Arts 
of The University of Tennessee. He has at all times ma­
terial herein and in all particulars met all of the qualifica­
tions necessary for admission as a graduate student to the 
Graduate School of The University of Tennessee, which 
facts defendants do not deny. He is now, and at all times 
material herein was and has been, ready, willing and able 
to pay all lawful charges and fees requisite to his admis­
sion, and is now, and at all times material herein was and 
has been, ready, willing and able to comply with all lawful 
rules and regulations requisite to his admission therein. 
He is also a veteran of World War II, and was honorably 
discharged from the United States Army with the rank 
of First Sergeant.

4. Plaintiffs Gene Mitchell Gray, Lincoln Anderson Blake- 
ney, Joseph Hutch Patterson, Jack Alexander, and each 
of them, being citizens of the United States and of the 
State of Tennessee who have applied and are duly qualified 
for admission to The University of Tennessee, as will here­
inafter more fully appear, but who have been denied ad­
mission thereto solely on the ground of race or color by 
the aforesaid defendants under color of the Constitution 
and Statutes of the State of Tennessee, and being persons 
having a joint interest in securing relief from the injuries 
sustained as a result of being deprived of their rights 
and privileges secured by the Constitution and laws of 
the United States, join on the same side as plaintiffs in 
bringing this action pursuant to Eule 19 and/or Rule 20 
of the Federal Rules of Civil Procedure.

5. Plaintiffs bring this action in their own behalf as 
above set forth, and, there being a common question of 
law and fact affecting the rights of all Negro citizens of 
the United States residing in the State of Tennessee simi­



6

larly situated, who are duly qualified for admission to 
The University of Tennessee and who are prevented from 
attending said institution because of their race or color, 
and who are so numerous as to make it impracticable to 
bring all before the Court, and a common relief being 
sought, as will hereinafter more fully appear, bring this 
action, pursuant to Rule 23 of the Federal Rules of Civil 
Procedure, also on behalf of all Negro citizens of the 
United States residing in the State of Tennessee, similarly 
situated and affected, as will hereinafter more fully 
[fol. 6] appear.

6. The State of Tennessee has established, and as a state 
function maintains and operates an institution known as 
The University of Tennessee (Acts of Tennessee, 1807, ch. 
64 & ch. 78, as amended by Pub. Acts of 1840, ch. 98, secs. 
4, 5; Pub. Acts of 1868-69, ch. 12; Pub. Acts of 1879, ch. 75; 
Pub. Acts of 1909, ch. 48 & ch. 264; Pub. Acts of 1915, ch. 
26; and Code of Tennessee, Vol. 1, Title 111, Chapter 3, 
Article 10) ; two of the integral parts or departments 
whereof are the Graduate School and the College of Law. 
The Graduate School is maintained and operated to afford 
graduate study in diverse fields—including programs of 
study leading to the degree of Master of Science in Chem­
istry with major in Bio-Chemistry, and leading to the 
degree of Master of Arts in French—to graduate students. 
The College of Law is maintained and operated to afford 
a program of study and courses leading to the degree of 
Bachelor of Laws to undergraduate students in law. There 
is no other institution maintained or operated by the State 
of Tennessee at which plaintiffs might obtain the graduate 
and/or legal education for which they respectively have 
applied to The University of Tennessee.

7. (a) Defendant The Board of Trustees of The Uni­
versity of Tennessee exists pursuant to the Constitution 
and laws of the State of Tennessee as an administrative 
board or agency thereof discharging essential govern­
mental functions (Constitution of Tennessee, Art. 11, sec. 
12; Acts of Tennessee, 1807, ch. 64 & ch. 78, as amended by 
Pub. Acts of 1840, ch. 98, secs. 4, 5; Pub. Acts of 1879, ch. 
75; see also Pub. Acts of 1909, ch. 48, Pub. Acts of 1939, ch,. 
30, sec. 1, and Code of Tennessee, Vol. 1, Title 111, Chapter 
3, Art. 10); it exercises over-all authority with reference



7

to the regulation of instruction and admission of students 
to The University of Tennessee, including the Graduate 
School and the College of Law thereof (Acts of Tennessee, 
1807, ch. 64, sec. 3; Pub. Acts of 1840, ch. 186, sec. 5, and 
Code of Tennessee, secs. 563, 566, 577, 584.8a); and is the 
governing body of The University of Tennessee (Pub. Acts 
of 1909, ch. 48, sec. 1).

(b) Defendant, The University of Tennessee is a cor­
poration duly chartered, organized and existing under the 
Laws of Tennessee and is declared by law to be a body po­
litic and corporate (Acts of Tennessee, 1807, ch. 64, sec. 1, 
[fol. 7] as amended by Pub. Acts of 1840, ch. 98, secs. 4, 5; 
Pub. Acts of 1879, ch, 75; Pub. Acts of 1909, ch. 48, and Pub. 
Acts of 1915, ch. 2 6 ); and it operates as an essential part, 
and as head, of the public school system of the State of 
Tennessee maintained by appropriations from the public 
funds of said State raised by taxation upon the citizens and 
taxpayers of said State, including plaintiffs (Pub. Acts of 
Tennessee, 1909, ch. 264, secs. 8, 9; Pub. Acts of 1917, ch. 
35; Pub. Acts of 1927, ch, 2, sec. 7; Pub. Acts of 1939, ch. 16, 
sec. 9; Pub. Acts of 1941, ch. 8, sec. 9; Pub. Acts of 1943, ch. 
135; Pub. Acts of 1945, ch. 180, secs. 1, 11; Pub. Acts of 
1947, ch, 8 (& ch. 161, and Pub. Acts of 1949, ch. 9, secs. 
1, 28).

(c) All of said defendants, above named as member 
trustees of The Board of Trustees of The University of 
Tennessee, are citizens and residents of the State of Ten­
nessee, and are being sued herein in their official capacities 
as such trustees.

(d) Defendant Cloide Everett Brehm is the duly ap­
pointed, qualified and acting President of The University 
of Tennessee, and as such is subject to the authority, rules 
and regulations of the defendant The Board of Trustees of 
The University of Tennessee as an immediate agent gov­
erning and controlling the several colleges, schools, and 
departments of The University of Tennessee.

(e) Defendant Eugene A. Waters is the duly appointed, 
qualified and acting Dean of the Graduate School of The 
University of Tennessee, and as such is subject to the 
authority, rules and regulations of the defendant The 
Board of Trustees of The University of Tennessee and of



8

defendant Cloide Everett Brelim, as an agent governing 
and controlling the Graduate School of The University 
of Tennessee, whose duties include being in charge of mat­
ters pertaining to the admission and acceptance of appli­
cants eligible to enroll as students therein, including the 
plaintiff Gene Mitchell Gray and the plaintiff Jack Alex­
ander.

(f) Defendant William Henry Wicker is the duly ap­
pointed, qualified and acting Dean of the College of Law 
of The University of Tennessee, and as such is subject to 
the authority, rules and regulations of defendant The 
Board of Trustees of The University of Tennessee, and of 
defendant Cloide Everett Brehm, as an agent governing 
and controlling the College of Law of The University of 
Tennessee, whose duties include being in charge of matters 
pertaining to the admission and acceptance of applicants 
eligible to enroll as students therein, including plaintiff 
Lincoln Anderson Blakeney and plaintiff Joseph Hutch 
Patterson.
[fol. 8] (g) Defendant Richmond Frederick Thomason is
the duly appointed, qualified and acting Dean of Admissions 
and Records of The University of Tennessee, and as such 
is subject to the authority, rules and regulations of de­
fendant The Board of Trustees of The University of Ten­
nessee and of defendant Cloide Everett Brehm, as an agent 
governing and controlling or administering the admission 
and acceptance of applicants eligible to enroll in The Uni­
versity of Tennessee, including plaintiffs and each of them, 
whose duties include the passing upon the eligibility of 
applicants who seek to enroll as students in The University 
of Tennessee, including plaintiffs and each of them.

(h) All of the individual defendants are under the au­
thority, rules and regulations, supervision and control of, 
and act pursuant to the orders, policies, practices, customs 
and usages of, and established by, defendant The Board of 
Trustees of The University of Tennessee.

(i) All of said individual defendants are citizens and 
residents of the State of Tennessee, and are being sued 
herein in their respective official capacities.

8. (a) During the period when defendants were receiv­
ing applications from white persons for admission as gradu­



9

ate students to the Graduate School, and as undergraduate 
students in law to the College of Law of The University 
of Tennessee, plaintiff Gene Mitchell Gray duly applied 
for admission as a graduate student to the Graduate School 
of The University of Tennessee, for study leading to the 
degree of Master of Science in the field of Chemistry with 
major in Bio-Chemistry, said application being for reg­
istration on the first day of the Fall Quarter, 1950.

(b) During the same period mentioned above, plaintiffs 
Lincoln Anderson Blakeney and Joseph Hutch Patterson, 
and each of them, duly applied for admission as under­
graduate students in law to the College of Law of The Uni­
versity of Tennessee, for study leading to the degree of 
Bachelor of Laws, said applications being for registration 
on the first day of the Winter Quarter, 1951.

(c) During the same period mentioned above, plaintiff 
Jack Alexander duly applied for admission as a. graduate 
student to the Graduate School of The University of Ten- 
[fol. 9] nessee, for study leading to the degree of Master of 
Arts in the field of French, said application being for regis­
tration on the first day of the Winter Quarter, 1951.

(d) At the time of their abovesaid applications and at 
all times material herein, plaintiffs, and each of them re­
spectively, were possessed of, and respectively still possess 
all the scholastic, moral, physical, and other lawful quali­
fications prescribed by the Constitution and laws of the 
State of Tennessee, by the defendants and each of them, 
and by the rules and regulations of The University of 
Tennessee. They, and each of them respectively, were 
then, and still are, and at all times material hereto have 
been, ready, willing and able to pay all lawful, uniform fees 
and charges, and to conform to all lawful uniform rules 
and regulations established by lawful authority for admis­
sion, as graduate students to the Graduate School, and/or 
as undergraduate students in law to the College of Law 
of The University of Tennessee.

9. On or about the 4th day of December, 1950, after 
plaintiffs, and each of them, according to the tenor of their 
respective abovesaid applications, had complied with all 
of the rules and regulations governing the admission of 
graduate students to the Graduate School, and/or the



10

admission of undergraduate students in law to the College 
of Law of The University of Tennessee, and although the 
defendants do not deny that plaintiffs, and each of them 
respectively, possessed all of the qualifications entitling 
them to be admitted, defendant, The Board of Trustees of 
The University of Tennessee refused and denied each and 
all of their applications for admission, because of their 
race or color.

10. Article 11, Section 12, of the Constitution of the 
State of Tennessee provides, in part, as follows:

• • And the fund called the common school fund, 
and all the lands and proceeds thereof . . . heretofore 
by law appropriated by the General Assembly of this 
State for the use of common schools, and all such as 
shall hereafter be appropriated, shall remain a per­
petual fund, . . . and the interest thereof shall be in­
violably appropriated to the support and encourage­
ment of common schools throughout the State, and 
for the equal benefit of all the people thereof. . . . No 
school established or aided under this section shall 
allow white and negro children to be received as 
scholars together in the same school. . . . ” (emphasis 
ours)

Sections 11395, 11396, 11397, of the Code of Tennessee, 
provides as follows:

[fol. 10] 11395 6888a37. “ . . . It shall be unlawful for
any school, academy, college, or other place of learning 
to allow white and colored persons to attend the same 
school, academy, college, or other place of learning. 
(1901, ch. 7, sec. 1.) ”

11396 6888a38. “ . . . It shall be unlawful for any 
teacher, professor, or educator in any college, academy, 
or school of learning, to allow the white and colored, 
races to attend the same school, or for any teacher 
or educator, or other person to instruct or teach both 
the white and colored races in the same class, school, or 
college building, or in any other place or places of 
learning, or allow or permit the same to be done with 
their knowledge, consent or procurement. (Ib., sec, 2.) ”

11397 6888a39. . . Any person violating any of the



11

provisions of this article, shall be guilty of a misde­
meanor, and, upon conviction, shall be fined for each 
offense fifty dollars, and imprisonment not less than 
thirty days nor more than six months. (Ib., sec. 4, 
Modified.) ”

11. The University of Tennessee was established and 
chartered under the name of “ Trustees of East Tennessee 
College” in the year 1807 (Acts of Tennessee, 1807, ch. 64 
(& ch. 78, as amended by Pub. Acts of 1840, ch. 98, (chang­
ing the name of the institution to “ Trustees of East Ten­
nessee University” ), Pub. Acts of 1879, ch, 75 (changing 
the name of the institution to “ The University of Ten­
nessee” ), Pub. Acts of 1909, ch. 48, and Pub. Acts of 1915, 
ch. 26 (changing the membership of the Board of Trus­
tees)) for the exclusive use and education of qualified 
white students. The General Assembly of Tennessee, in 
order to secure the benefits of the Act of Congress of Julv 
2, 1862, ch. 130, 12 Stat. 503 (United States Code, Title 7, 
secs. 301-305, 307, 308—“Morill” Act appropriating land 
or land scrip for establishment of agricultural and me­
chanical colleges in the several states), by Chapter 12 of 
the Public Acts of Tennessee, Second Session, of 1868-69, 
established the Tennessee Agricultural College as a part of 
The University of Tennessee (then East Tennessee Uni­
versity). Section 13 of said Acts of 1868-69 provided as 
follows:

“ . . . no citizen of this State, otherwise qualified, 
shall be excluded from the privileges of said University 
by reason of his race or color, provided that it shall 
be the duty of the Trustees of said University, to make 
such provisions as may be necessary for the separate 
accom-odation or instruction of any persons of color, 
who may be entitled to admission.” (emphasis ours)

By Chapter 18, Public Acts of Tennessee of 1913, all federal 
funds received under the Acts of Congress for agricultural 
and industrial education formerly appropriated to The 
University of Tennessee, and allocated for the separate 
education of Negroes under Section 13 above, were trans­
ferred to the Tennessee Agricultural and Industrial Col­
lege for Negroes at Nashville.

3—120



12

[fol. 11] Sections 2403.1 and 2403.3 of the Code of Ten­
nessee provide, in part, as follows:

“ 2403.1. Scholarships for colored students.—The 
state board of education is hereby authorized and 
directed to establish scholarships for colored students, 
payable out of state appropriations made for the agri­
cultural and industrial college for negroes, under the 
terms and conditions hereinafter set forth. Such schol­
arships shall be granted to colored students to take 
professional courses not offered in said agricultural 
and industrial college for negroes, or other state- 
maintained institution for negroes, but which are of­
fered for white students in the University of Ten­
nessee . . . (1937, ch. 256, sec. 1.)”

“ 2403.3. Educational facilities for negro citizens 
equivalent to those provided for ivhite citizens.—The 
state board of education and the commissioner of edu­
cation are hereby authorized and directed to provide 
educational training and instruction for negro citizens 
of Tennessee equivalent to that provided at the Uni­
versity of Tennessee by the State of Tennessee for 
white citizens of Tennessee. Such training and in­
struction shall be made available in a manner to be 
prescribed by the state board of education and the com­
missioner of education; provided, that members of 
the negro race and white race shall not attend the same 
institution or place of learning. . . . (1941, ch. 43, sec. 
1. ) ”

Throughout the existence of The University of Tennessee, 
including the Graduate School and the College of Law 
thereof, defendant, The Board of Trustees of The University 
of Tennessee has maintained and pursued the uniform policy 
of restricting admission to said institution to white stu­
dents.

12. Defendants Cloide Everett Brehm, Eugene A. Waters, 
William Henry Wicker, and Richmond Frederick Thom­
ason, acting in the premises as the agents of the defendant 
The Board of Trustees of The University of Tennessee, and 
as administrative agents and officers of the State of Ten­
nessee have failed and/or refused to consider in good faith



13

the respective applications of the plaintiffs Gene Mitchell 
Gray, Lincoln Anderson Blakeney, Joseph Hutch Patter­
son, and Jack Alexander. Said defendants have advised 
the plaintiffs both orally and in writing that defendants 
could not act on or consider plaintiffs’ applications for 
admission to the respective Schools and Colleges of The 
University of Tennessee because the plaintiffs were Negroes 
and the laws of Tennessee prevent Negroes and members of 
the white race from attending the same schools. A letter 
dated September 6, 1950' from defendant Richmond Fred­
erick Thomason addressed to plaintiff Lincoln Anderson 
Blakeney is hereto attached as Exhibit “A ” to this Com­
plaint, to which reference is hereby made; the attached 
Exhibit “ A ” showing the failure and refusal to duly con­
sider the said application of plaintiff Lincoln Anderson 
Blakeney in good faith and showing a denial of his admis- 
[fol. 12] sion solely on the ground of race or color. The 
said Exhibit “A ” also expresses in substance and effect 
the policy of the defendants in failing and/or refusing to 
consider in good faith the applications of the other plain­
tiffs herein, and their denial of admission solely on the 
ground of race or color.

13. The plaintiffs, through their counsel, on 1 December 
1950, sought admission to the respective Schools and Col­
leges of The University of Tennessee by presenting oral 
arguments to the defendant Cloide Everett Brehm as ad­
ministrative head or President of The University of Ten­
nessee, as the agent of the defendant The Board of Trustees 
of The University of Tennessee, and as administrative officer 
and agent of the State of Tennessee; at which presentation 
the defendants Eugene A. Waters, William Henry Wicker, 
and Richmond Frederick Thomason, or their duly author­
ized representatives were present. Plaintiffs, through their 
counsel, were advised at the abovesaid conference that 
they were being denied admission to The University of 
Tennessee because of the Constitution and Statutes of Ten­
nessee prohibiting Negroes from attending a white school 
or university, and that before said defendants could admit 
the plaintiffs, the defendant The Board of Trustees of The 
University of Tennessee, which is the governing body of 
said University, would have to so authorize and order.



14

14. Tlie defendant Cloide Everett Brehm presented to 
the defendant The Board of Trustees of The University 
of Tennessee in their meeting held on 4 December, 1950 
in Memphis, Tennessee, the aforesaid requests and oral argu­
ments, and also the written requests and arguments of 
plaintiffs, through their counsel, for admission to The 
University of Tennessee, as shown by their letter dated 
2 December, 1950 addressed to The University of Tennessee, 
Board of Trustees, a copy of which is hereto attached and 
marked Exhibit “ B ” to this Complaint, to which reference 
is hereby made, and as shown by letter, dated 7 December, 
1950, from the defendant Cloide Everett Brehm, hereto 
attached and marked Exhibit “ C” to this Complaint, to 
which reference is hereby made.

15. Defendant The Board of Trustees of The Uni­
versity of Tennessee, acting as an administrative board or 
commission of the State of Tennessee under Statutes of said 
State, has refused to consider duly, properly and lawfully, 
[fol. 13] and in good faith the applications of the plain­
tiffs for admission to the respective Schools and Colleges 
of The University of Tennessee to which they have made 
application as abovesaid, but instead, has made and estab­
lished an order excluding, because of their race or color, 
plaintiffs and each of them, and all other Negroes otherwise 
qualified, residing in the State of Tennessee, from all col­
leges, schools, departments and divisions of The University 
of Tennessee, including but not limited to the Graduate 
School and College of Law thereof. Acting pursuant to the 
laws specified in paragraphs 10 and 11 hereof, and in the 
enforcement of these laws, defendant The Board of Trustees 
of The University of Tennessee, on or about the 4th day of 
December, 1950, adopted the following resolution:

“ Whereas, the Constitution and the Statutes of the 
State of Tennessee expressly provide that there shall 
be segregation in the education of the races in schools 
and colleges in the State and that a violation of the 
laws of the State in this regard subjects the violator 
to prosecution, conviction, and punishment as therein 
provided; and,

Whereas, this Board is bound by the Constitutional 
provision and acts referred to;



15

Be it therefore resolved, that the applications by 
members of the Negro race for admission as students 
into The University of Tennessee be and the same are 
hereby denied.”

A copy of said resolution received by counsel for plaintiffs 
as an enclosure to the abovesaid letter from defendant Cloide 
Everett Brehm, marked Exhibit “ C”, to which reference 
is hereby made, is attached hereto and marked Exhibit 
“D” to this Complaint, to which reference is hereby made,

16. Defendants Cloide Everett Brehm, Eugene A. Waters, 
William Henry Wicker, and Richmond Frederick Thomason 
refuse to act favorably upon the respective applications of 
plaintiffs Gene Mitchell Gray, Lincoln Anderson Blakeney, 
Joseph Hutch Patterson, and Jack Alexander according to 
the tenor thereof, and will continue to refuse to admit them 
upon the ground that defendant The Board of Trustees of 
The University of Tennessee has made and established, and 
enforces, executes and pursues an order, policy, practice, 
custom and usage that qualified Negro applicants, because 
of their race or color, are not eligible for admission as grad­
uate students to the Graduate School, and/or as under­
graduate students in law to the College of Law, of The 
University of Tennessee.
[fol. 14] 17. All defendants have pursued, and are pur­
suing, the policy, practice, custom and usage of excluding, 
because of their race or color, plaintiffs, and all other Ne­
groes similarly situated, residing in the State of Tennessee, 
from all colleges, schools, departments, and divisions of 
The University of Tennessee, including the Graduate School 
and the College of Law of The University of Tennessee, 
pursuant to the order specified in paragraph 15 hereof, and 
pursuant to the laws of the State of Tennessee specified in 
paragraphs 10 and 11 hereof.

18. Plaintiffs are informed and believe, and therefore 
allege upon information and belief, that but for the laws 
of the State of Tennessee set forth in paragraphs 10 and 
11 hereof, defendants would not have established and would 
not be enforcing or executing the order set forth in para­
graph 15 hereof, and would not have pursued and would 
not be pursuing the policy, practice, custom and usage 
set forth in paragraph 17 hereof, and would not have de­



16

prived, and would not continue to deprive plaintiffs, and 
other Negroes similarly situated, of their rights secured by 
the Constitution and laws of the United States, and here-- 
inbefore and hereinafter more fully set forth.

19. The action of defendants, and each of them, in denying 
plaintiffs’ admission, and the admission of each of them 
respectively, as graduate students in the Graduate School 
and/or as undergraduate students in law in the College 
of Law of The University of Tennessee, and/or in establish­
ing, enforcing or executing against plaintiffs and other 
Negroes similarly situated the order specified in para­
graph 15 hereof, and/or in pursuing against plaintiffs and 
other Negroes similarly situated the policy, practice, cus­
tom and usage specified in paragraph 17 hereof, and/or in 
enforcing or executing against plaintiffs and other Negroes 
similarly situated the laws of the State of Tennessee speci­
fied in paragraphs 10 and 11 hereof, has denied, and is 
denying plaintiffs, and other Negroes similarly situated, 
because of their race or color, their privileges and immuni­
ties as citizens of the United States, their liberty and prop­
erty without due process of law, and the equal protection 
of the laws, secured by section 1 of the Fourteenth Amend­
ment of the Constitution of the United States, and rights 
secured by section 41 of Title 8 of the United States Code.

20. Plaintiffs, and other Negroes similarly situated, on 
whose behalf this suit is brought, are suffering irreparable 
[fol. 15] injury, and are threatened with irreparable injury 
in the future by reason of the acts of defendants hereinbefore 
set forth. They have no plain, adequate or complete rem­
edy to redress the wrongs or illegal acts hereinbefore set 
forth other than this action for an injunction. Any other 
remedy to which plaintiffs, and other Negroes similarly 
situated, could be remitted would be attended by such 
uncertainties and delays as to deny substantial relief, would 
involve a multiplicity of suits, and would cause further 
irreparable injury, damage, vexation and inconvenience to 
plaintiffs and other Negroes similarly situated.

21. Defendants have denied and will continue to deny, 
plaintiff’s admission, and the admission of each of them 
respectively, as graduate students in the Graduate School, 
and/or as undergraduate students in law in the College 
of Law, of The University of Tennessee, and/or have en­



17

forced and executed, and will continue to enforce and exe­
cute, against plaintiffs and other Negroes similarly situ­
ated, the order specified in paragraph 15 hereof, and/or 
are pursuing, against plaintiffs and other Negroes simi­
larly situated, and will continue to pursue, the policy, 
practice, custom and usage specified in paragraph 17 hereof, 
and/or are enforcing and executing, and will continue to 
enforce and execute, against plaintiffs and other Negroes 
similarly situated, the laws of the State of Tennessee speci­
fied in paragraphs 10 and 11 hereof, and unless this Court 
issues a preliminary injunction the rights of plaintiffs and 
other Negroes similarly situated, as hereinbefore set forth, 
and their right to attend as graduate students the Graduate 
School, and/or as undergraduate students in law the Col­
lege of Law, of The University of Tennessee at the begin­
ning of the Spring Quarter, 1951, will be unprotected and 
lost.

Wherefore, plaintiffs respectively pray, upon the filing of 
this complaint:

1. That this Court immediately convene a Three-Judge 
Court, as required by Title 28, United States Code, section 
2281.

2. That this Court enter a preliminary or interlocutory 
injunction restraining defendants, and each of them, their 
successors in office, and their agents and employees, from 
enforcing or executing against plaintiffs, or other Negroes 
[fol. 16] similarly situated, the order specified in paragraph 
15 hereof, upon the ground that said order, as applied to 
plaintiffs, or other Negroes similarly situated, on whose 
behalf they sue, denies them their privileges and immuni­
ties as citizens of the United States, their liberty and prop­
erty without due process of lawq and the equal protection 
of the laws, secured by the Fourteenth Amendment of the 
Constitution of the United States, section 1, and the rights 
secured by Title 8, United States Code, section 41.

3. That' this Court enter a preliminary or interlocutory 
injunction restraining defendants, and each of them, their 
successors in office, and their agents and employees, from 
all action pursuant to the laws of the State of Tennessee 
specified in paragraphs 10 and 11 hereof which preclude the 
admission of plaintiffs, and other Negroes similarly situated,



18

to the colleges, schools, divisions or departments of The 
University of Tennessee, upon the ground that the said 
laws, as applied to plaintiffs, or other Negroes similarly 
situated, on whose behalf they sue, denies them their priv­
ileges and immunities as citizens of the United States, their 
liberty and property without due process of law, and the 
equal protection of the laws, secured by the Fourteenth 
Amendment of the Constitution of the United States, section 
1, and the rights secured by Title 8, United States Code, 
section 41.

4. That this Court enter a preliminary or interlocutory 
injunction restraining defendants, and each of them, their 
successors in office, and their agents and employees, from 
enforcing, executing or pursuing against plaintiffs, or other 
Negroes similarly situated, the policy, practice, custom or 
usage specified in paragraph 17 hereof, upon the ground 
that the enforcement, execution or pursuance of said policy, 
practice, custom or usage against plaintiffs, or other Ne­
groes similarly situated, on whose behalf they sue, denies 
them their privileges and immunities as citizens of the 
United States, their liberty and property without due proc­
ess of law, and the equal protection of the laws, secured 
by the Fourteenth Amendment of the Constitution of the 
United States, section 1, and the rights secured by Title 8, 
United States Code, section 41.

5. That this Court enter a preliminary or interlocutory 
injunction restraining defendants, and each of them, their 
successors in office, and their agents and employees, from 
making any distinction, on the basis of race or color, in the 
[fol. 17] consideration of plaintiffs or any other applicant, 
for admission as a student to any college, school, division 
or department of The University of Tennessee, upon the 
ground that any such distinction, as made or applied with 
respect to plaintiffs, or other Negroes similarly situated, 
on whose behalf they sue, denies them their privileges and 
immunities as citizens of the United States, their liberty 
and property without due process of law, and the equal 
protection of the laws, secured by the Fourteenth Amend­
ment of the Constitution of the United States, section 1, 
and the rights secured by Title 8, United States Code, sec­
tion 41.



19

And plaintiffs respectfully pray further that upon a full 
hearing hereof:

6. That this Court enter a permanent injunction restrain­
ing defendants, and each of them, their successors in office, 
and their agents and employees, from enforcing or executing 
against plaintiffs, or other Negroes similarly situated, the 
order specified in paragraph 15 hereof, and from enforcing 
or executing against plaintiffs, or other Negroes similarly 
situated, any other order making any distinction, on the 
basis of race or color, in the consideration of any applicant 
for admission as a student to any college, school, division 
or department of The University of Tennessee, upon the 
ground that such order, as applied to plaintiffs, or other 
Negroes similarly situated, on whose behalf they sue, denies 
them their privileges and immunities as citizens of the 
United States, their liberty and property without due proc­
ess of law, and the equal protection of the laws, secured 
by the Fourteenth Amendment of the Constitution of the 
United States, section 1, and the rights secured by Title 
8, United States Code, section 41.

7. That this Court enter a permanent injunction restrain­
ing defendants, and each of them, their successors in office, 
and their agents and employees, from all action pursuant to 
the laws of the State of Tennessee specified in paragraphs 
10 and 11 hereof which preclude the admission of plaintiffs, 
and other Negroes similarly situated, to the colleges, schools, 
divisions or departments of The University of Tennessee, 
upon the ground that said laws, as applied to plaintiffs, 
or other Negroes similarly situated, on whose behalf they 
sue, deny them their privileges and immunities as citizens 
of the United States, their liberty and property without due 
process of law, and the equal protection of the laws, secured 
[fol. 18] by the Fourteenth Amendment of the Constitution 
of the United States, section 1, and the rights secured by 
Title 8, United States Code, section 41.

8. That this Court enter a permanent injunction restrain­
ing defendants, and each of them, their successors in office, 
and their agents and employees, from enforcing, executing 
or pursuing against plaintiffs, or other Negroes similarly 
situated, the policy, practice, custom or usage specified in 
paragraph 17 hereof, and from enforcing, executing or

4—120



20

pursuing against plaintiffs, or other Negroes similarly 
situated, any other policy, practice, custom or usage making 
any distinction, on the basis of race or color, in the consid­
eration of any applicant for admission as a student to any 
college, school, division or department of The University 
of Tennessee, upon the ground that the enforcement, execu­
tion or pursuance of said policy, practice, custom or usage 
against plaintiffs, or other Negroes similarly situated, on 
whose behalf they sue, denies them their privileges and 
immunities as citizens of the United States, their liberty 
and property without due process of law, and the equal 
protection of the laws, secured by the Fourteenth Amend­
ment of the Constitution of the United States, section 1, 
and the rights secured by Title 8, United States Code, 
section 41.

9. That this Court enter a permanent injunction restrain­
ing’ defendants, and each of them, their successors in office, 
and their agents and employees, from making any distinc­
tion, on the basis of race or color, in the consideration of 
plaintiffs or any other applicant, for admission as a student 
to any college, school, division or department of The Uni­
versity of Tennessee, upon the ground that any such dis­
tinction, as made or applied with respect to plaintiffs or 
other Negroes similarly situated, on whose behalf they sue, 
denies them their privileges and immunities as citizens of 
the United States, their liberty and property without due 
process of law, and the equal protection of the laws, secured 
by the Fourteenth Amendment of the Constitution of the 
United States, section 1, and the rights secured by Title 8, 
United States Code, section 41.

10. That this Court allow plaintiffs their costs herein, and 
grant them such further, other, additional or alternative 
[fol. 19] relief as may appear to the Court to be equitable 
and just in the premises.

Carl A. Cowan, 101% W. Vine Avenue, Knoxville, 
Tennessee, Avon N. Williams, Jr., 511 E. Vine 
Avenue, Knoxville 15, Tennessee, Z. Alexander 
Looby, 419-4th Avenue, North, Nashville, Tennes­
see, Thurgood Marshall, 20 West 40th Street, New 
York, New York, Attorneys for Plaintiffs.



21

[fol. 20] Duly sworn to by Gene Mitchell Gray, et al. 
Jurats omitted in printing.

[fo l. 21] “ E x h ib it  A ” to Co m pla int

T h e  U niversity  of T en n essee— K noxville 

Office of the Dean of Admissions 

September 6, 1950

Mr. Lincoln Anderson Blakeney, 1322 Jasper Avenue, Knox­
ville, Tennessee

My dear Mr. Blakeney:
I have received your application for admission to our 

College of Law and also your transcript from Knoxville 
College. You are aware, I am sure, of the law in Tennessee 
which prevents negroes and members of the white race from 
attending the same schools.

I am suggesting that you write to Mr. W. E. Turner of 
the State Department of Education, Nashville, Tennessee. 
Mr. Turner is in charge of negro education for the state and 
will be able to help you work out your plans for further 
education.

Very sincerely yours, R. F. Thomason, Dean of Ad­
missions and Records.

RFT :as



22

C. A . Cow an , A ttorney  A t L aw

101 1-2 West Vine Avenue, Knoxville, Tennessee

Phone 2-5217—December 2, 1950

The University of Tennessee Board of Trustees, Care of 
Mr. James P. Hess, Secretary, Peabody Hotel, Memphis, 
Tennessee

Gentlemen:
Dr. C. E. Brehm, President of University and Board has 

advised us that he would present request of our clients, 
four Negroes, for admission to the University of Tennessee. 
By way of emphasis, we submit the following:

Gene Mitchell Gray duly filed application dated August 
1, 1950 for admission to the Graduate School for registra­
tion Fall Quarter, September 22, 1950, for study leading to 
Master of Science Degree in Bio-Chemistrv in Field of 
Chemistry.

Lincoln Anderson Blakeney and Joseph Hutch Patterson 
duly filed applications dated August 22,1950 and September 
14, 1950 respectively for admission to the College of Law 
for registration Winter Quarter, January 2, 1951, for study 
leading to Bachelor of Law Degree.

Jack Alexander duly filed application dated November 
22, 1950 for admission to the Graduate School for registra­
tion Winter Quarter, January 2, 1951, for study leading to 
Master of Arts Degree in French.

The State of Tennessee provides graduate study in Bio- 
Chemistry in Field of Chemistry, legal education and gradu­
ate study in French for its white citizens at the University 
of Tennessee but the State does not provide said educational 
training for its Negro citizens.

The applicants are bona fide citizens of Tennessee and 
duly qualified for admission. They have duly requested all 
proper administrative officers of the University to duly con­
sider their applications and admit them as aforesaid. The 
applicants have been refused on ground that Tennessee 
Constitution, at Article XI. Section 12, and certain Statutes

[fol. 22] “ E x h ib it  B ” to Com plaint



23

prohibit Negroes and members of the white race from attend­
ing the same schools—a denial solely on ground of race or 
color. The administrative officers further advise that it is 
a matter of policy for determination by the Board.
[fol. 23] We are hereby requesting and appealing to the 
Board of Trustees to authorize for acceptance and approval 
the applications of our clients for admission to the Uni­
versity of Tennessee as aforesaid not later than the first day 
of the Winter Quarter, 1951.

Irreparable injury and damage have already been suf­
fered by Gene Mitchell Gray in loss of one quarter’s work. 
The others will likewise suffer if not admitted as afore­
said. More than reasonable time has been given to consider 
applications. Failure of the Board to accept or reject 
applications at this meeting will be considered a rejection.

We maintain that a failure of the Board to make a decision, 
or a refusal to accept our clients, Negroes, for admission 
by the University of Tennessee, a governmental agency of 
the State, on the basis of said State Constitution and Statutes 
is a denial of equal protection of the laws in violation of 
the 14th Amendment to the Constitution of the United 
States by the State of Tennessee. The Constitution and 
Statutes of Tennessee segregating and discriminating 
against Negroes, when invoked to deprive Negro applicants 
of educational facilities equal to those provided by the State 
for other citizens are unconstitutional and invalid.

The University of Tennessee is bound by decisions of the 
United States Supreme Court in Sweatt v. Painter et al 
(Texas); McLaurin v. Oklahoma State Regents; Sipuel v. 
Board of Regents (Oklahoma) and State of Missouri ex rel 
Gaines v. Canada.

We strongly urge Board decision favorable to admission 
of our clients. Would appreciate reply.

Yours very truly, / s /  Carl A. Cowan, / s /  Avon N.
Williams, Jr., Attorneys.



24

T h e  U niversity  oe T en n e sse e— K noxville 

Office of the President 

December 7, 1950

Mr. Carl A. Cowan, Mr. Avon N. Williams, Jr., 101% West
Vine Avenue, Knoxville, Tennessee

Gentlemen:
Concerning the applications of Gene Mitchell Gray, appli­

cant for Graduate School, Lincoln A. Blakeney and Joseph 
H. Patterson, applicants for School of Law, and Jack Alex­
ander, applicant for Graduate School, respectively, to the 
University of Tennessee.

Pursuant to conversation which we had on December 1 
in the Administration Building relative to the admission 
of the aforesaid applicants to the respective schools and 
colleges of The University of Tennessee, and your letter 
of December 2 addressed to The University of Tennessee 
Board of Trustees, Care of Mr. James P. Hess, Secretary 
of the Board of Trustees, I submitted these cases to the 
Board of Trustees, at their Annual meeting in Memphis 
December 4. I submitted to them the arguments which you 
had advanced in our conversation on December 1 as I 
promised you I would do. The Board, taking into consid­
eration the facts presented in your letter of December 2 
and your oral statements to me as President of the Uni­
versity, took the action as indicated on the enclosed Reso­
lution.

Yours very truly /s /  C. E. Brehm, President.
CEB :hlg 

Enclosure

[fo l. 24] “ E x h ib it  C ”  to C o m pla in t



25

Whereas, the Constitution and the Statutes of the State 
of Tennessee expressly provide that there shall be segrega­
tion in the education of the races in schools and colleges in 
the State and that a violation of the laws of the State in this 
regard subjects the violator to prosecution, conviction, and 
punishment as therein provided; and,

Whereas, this Board is bound by the Constitutional pro­
vision and acts referred to;

Be it therefore resolved, that the applications by members 
of the Negro race for admission as students into The Uni­
versity of Tennessee.be and the same are hereby denied.

[fols. 25-26] “ E x h ib it  D ” to Co m pla in t

[fol. 27] I n  t h e  U nited  S tates D istrict  Court

[Title omitted]

[File endorsement omitted.]

A n s w e r -— Filed February 1, 1951
The defendants for answer to the complaint filed against 

them in this cause say:

First Defense
These defendants, and each of them, act under and pur­

suant to the Constitution of the State of Tennessee and 
the statutes of the said State; and pursuant to Article 11, 
Section 12, of the Constitution of the State of Tennessee, 
they are enjoined by law from permitting any white and 
negro children to be received as scholars together in the 
same school.
[fol. 28] Second Defense

These defendants, and each of them, act pursuant to the 
Statutes of the State of Tennessee, and especially Sections 
11395,11396,11397, of the Code of Tennessee, which provide 
that it would be unlawful for the defendants to permit the 
plaintiffs to enter the University of Tennessee, together



26

with white persons, and provides for the punishment of the 
defendants for violation of said Statutes.

Third Defense
The plaintiffs are not entitled to the relief sought since 

under the Code of Tennessee provision has been made to 
provide professional education for colored persons not 
offered to them in state colleges for Negroes, but offered 
for white students in the University of Tennessee.

Fourth Defense
The plaintiffs are not entitled to the relief sought in the 

complaint for the reason that under the Code of Tennessee 
the State Board of Education and the Commissioner of Edu­
cation are authorized and directed to provide educational 
training and instruction for Negro citizens of Tennessee 
equivalent to that provided by the State for white citizens 
of Tennessee.

Fifth Defense
The Plaintiffs are not entitled to the relief sought upon 

the grounds that the Fourteenth Amendment of the Con­
stitution of the United States has been violated since such 
amendment was intended only to enforce equality of the 
races before the law and was not intended to abolish dis­
tinctions based upon color or to enforce social, as distin­
guished from political, equality.

[fob 29] Sixth Defense
The plaintiffs are not entitled to the relief sought in the 

complaint for the reason that the State of Tennessee under 
its Constitution and Statutes and under its police power 
has adopted reasonable regulations for the operation of 
its institutions based upon established usages, customs and 
traditions and with a view to the promotion of the comfort 
of its citizens and the preservation of the public peace and 
good order, and such regulations being reasonable are not 
subject to challenge by the plaintiffs.

Seventh Defense
The plaintiffs are not entitled to the relief sought in this 

complaint for the reason that neither the Fourteenth Amend­



27

ment of the Constitution of the United States nor Title 8, 
Section 41, of the United States Code were intended to 
deprive the states of their rights to adopt all reasonable 
laws and regulations for the preservation of the public 
peace and good order under the inherent police power of the 
state, and for the further reason that if Title 8, Section 41 
of the United States Code was intended to deprive the 
state of such inherent right under its police power, the 
same is unconstitutional and void.

Eighth Defense
The plaintiffs are not entitled to the relief sought in this 

complaint for the reason that all powers and authorities not 
expressly granted to the Federal Government in the Con­
stitution of the United States are reserved to the states, 
and neither the Fourteenth Amendment to the Constitution 
[fol. 30] of the United States nor any other section of the 
Constitution of the United States authorizes, or was in­
tended to authorize, the denial to the states of their rights 
as sovereign powers to govern their own institutions and 
provide reasonable regulations for the promotion of the 
comfort of their citizens and the preservation of the public 
peace and good order, nor was the Fourteenth Amendment 
or any other provision of the Constitution of the United 
States intended to authorize the Federal Government or 
any of its arms or branches to take away from the states 
those rights.

Ninth Defense
Plaintiffs are not entitled to the relief sought in the com­

plaint for the reason that there is no equity on the face of 
the bill.

Walker & Hooker, s / By John J. Hooker, s / By K. 
Harlan Dodson, Jr., 1106 Nashville Trust Building, 
Nashville, Tennessee, Attorneys for Defendants.



[Title omitted]

[File endorsement omitted.]

M o t i o n  f o r  J u d g m e n t  o n  t h e . P l e a d i n g s —Filed February
12, 1951

The plaintiffs, Gene Mitchell Gray, Lincoln Anderson 
Blakeney, Joseph Hutch Patterson and Jack Alexander, 
in their own behalf and also on behalf of all Negro citizens 
of the United States who are citizens and residents of the 
State of Tennessee, similarly qualified, situated and affected, 
move the Court for judgment on the pleadings in their favor 
in the above cause on the grounds that the pleadings show 
that there is no dispute and issue as to any material fact, 
and that the plaintiffs are entitled to judgment as a matter 
of law.

Gene Mitchell Gray, Lincoln Anderson Blakeney, 
Joseph Hutch Patterson, Jack Alexander, By s / 
Carl A. Cowan, 101% W. Vine Avenue, Knoxville, 
Tennessee, s/ Avon N. Williams, Jr., 511 E. Vine 
Avenue, Knoxville 15, Tennessee, s/ Z. Alexander 
Looby, 419-4tli Avenue, North, Nashville. Tenne- 
see, s / Thurgood Marshall, 20 West 40th Street, 
New York, New York, Solicitors.

Certificate of service (omitted in printing).

28

[fol. 31] I n U n ited  S tates D istrict  C ourt

[fo l 32] I n  U nited  S tates D istrict  Court

[Title omitted]

Order D esig n atin g  T h r e e - J udge C ourt—February 20, 1951

The Honorable Robert L. Taylor, United States District 
Judge for the Eastern District of Tennessee, to whom the 
application for a preliminary and permanent injunction and 
other relief in the above entitled cause has been presented, 
has notified me as Chief Judge of the Sixth Circuit of the 
Application.



I do therefore hereby, in compliance with Title 28, Sec. 
2284, United States Code, designate The Honorable Shackel­
ford Miller, Jr. United States Circuit Judge for the Sixth 
Circuit, and The Honorable Leslie R. Darr, United States 
District Judge for the Eastern District of Tennessee, to 
serve with The Honorable Robert L. Taylor as members of 
the court to hear and determine the above entitled action 
or proceeding.

Dated at Knoxville, Tennessee, this 20th day of February, 
1951.

Xen Hicks, Chief Judge.

[ f o l .  33] I n  U n i t e d  S t a t e s  D i s t r i c t  C o u r t

[Title omitted]
N o t i c e  o f  H e a r i n g

Notice is hereby given that Plaintiff’s Motion for Sum­
mary Judgment is set for hearing before a Three-Judge 
Court at Knoxville, Tennessee, on Thursday: March 1, 1951, 
at 9:30 A. M., E. S. T.

Carroll Cate, Clerk, U. S. District Court.
Copy of this Notice mailed all interested persons by Clerk 

on February 21, 1951, at 9 A. M. List attached.
Carroll Cate, Clerk. (Seal)

[fol 34] Carl A. Cowan, Atty.
1011/2 W. Vine Ave.
Knoxville, Tennessee 

Avon N. Williams, Jr., Atty.
511 E. Vine Ave.
Knoxville 15, Tennessee.

Z. Alexander Looby, Atty.
419—4th Ave., North 
Nashville, Tennessee 

Thurgood Marshall, Atty.
20 West 40th Street 
New York, New York 

John J. Hooker, Atty.
Nashville Trust Bldg.
Nashville 3, Tennessee



30

K. Harlan Dodson, Jr., Atty.
Nashville Trust Bldg.
Nashville, Tennessee 

Walker & Hooker, Atty.
Nashville Trust Bldg.
Nashville 3, Tennessee 

Governor Gordon Browning 
Nashville, Tennessee 

Roy Beeler
Attorney General 
State of Tennessee 
Nashville, Tennessee 

John C. Baugh, Atty.
University of Tennessee 
Knoxville, Tennessee 

The University of Tennessee
c/o Cloide Everett Brehm, President 
University of Tennessee 
Knoxville, Tennessee 

Cloide Everett Brehm 
University of Tennessee 
Knoxville, Tennessee 

Eugene A. Waters
University of Tennessee 
Knoxville, Tennessee 

William Henry Wicker 
University of Tennessee 
Knoxville, Tennessee 

Richmond Frederick Thomason 
University of Tennessee 
Knoxville, Tennessee 

[fol. 35] Cloide Everett Brehm 
President, The University of Tennessee 
Knoxville, Tennessee 

Williston M. Cox 
Park National Bank Bldg.
Knoxville, Tennessee 

James A. Fowler 
Hamilton Bank Bldg.
Knoxville, Tennessee



31

George C. Taylor 
2778 Kingston Pike 
Knoxville, Tennessee 

Gordon Browning-
Governor of the State of Tennessee 
Nashville, Tennessee 

James A. Barksdale
Commissioner of Education of the State of Tennessee 
Nashville, Tennessee 

Edward Jones
Commissioner of Agriculture of the State of Tennessee 
Nashville, Tennessee 

Frank R. Ahlgren 
Commercial Appeal 
Memphis, Tennessee 

Thomas H. Allen 
P. 0. Box 388 
Memphis, Tennessee 

Wassell Randolph
Commerce Title Building 
Memphis, Tennessee 

Clyde B. Austin
Greeneville, Tennessee 

Harry S. Berry
Hendersonville, Tennessee 

W. P. Cooper
Shelbyville, Tennessee 

E. W. Eggleston 
Hilldale Drive 
Nashville, Tennessee 

James T. Granbery 
Brentwood, Tennessee 

Sam J. McAllester 
James Building 
Chattanooga, Tennessee 

I. B. Tigrett
Jackson, Tennessee 

Charles R. Voltz 
Ripley, Tennessee



32

[Title omitted]

N otice op B esettin g  t h e  H earing

On account of the death of Hon. Seth Walker, one of the 
defendants’ chief counsel, this case has been re-set for 
hearing on Motion for Summary Judgment for Tuesday; 
March 13, 1951, at 9:30 A. M., E. S. T.

Carroll Cate, Clerk, U. S. District Court.

Copy of this Notice mailed by Clerk on February 27, 
1951, to all interested persons per attached list.

Carroll Cate, Clerk (Seal).
[fol. 37] Carl A. Cowan, Atty.

101% W. Vine Ave.
Knoxville, Tennessee 

Avon N. Williams, Jr., Atty.
511 E. Vine Ave.
Knoxville 15, Tennessee. .

Z. Alexander Looby, Atty.
419—4tli Ave., North 
Nashville, Tennessee 

Thurgood Marshall, Atty.
20 West 40th Street 
New York, New7 York 

John J. Hooker, Atty.
Nashville Trust Bldg.
Nashville 3, Tennessee 

K. Harlan Dodson, Jr., Atty.
Nashville Trust Bldg.
Nashville, Tennessee 

Walker & Hooker, Atty.
Nashville Trust Bldg.
Nashville 3, Tennessee 

Governor Gordon Browning 
Nashville, Tennessee 

Roy Beeler
Attorney General 
State of Tennessee 
Nashville, Tennessee

[fo l. 36] I n  U n ited  States  D istrict  C ourt



33

John C. Baugh, Atty.
University of Tennessee 
Knoxville, Tennessee 

The University of Tennessee
c/o Cloide Everett Brehm, President 
University of Tennessee 
Knoxville, Tennessee 

Cloide Everett Brehm 
University of Tennessee 
Knoxville, Tennessee 

Eugene A. Waters
University of Tennessee 
Knoxville, Tennessee 

William Henry Wicker 
University of Tennessee 
Knoxville, Tennessee 

Richmond Frederick Thomason 
University of Tennessee 
Knoxville, Tennessee 

[fol. 38] Cloide Everett Brehm 
President, The University of Tennessee 
Knoxville, Tennessee 

Williston M. Cox 
Park National Bank Bldg.
Knoxville, Tennessee 

James A. Fowler 
Hamilton Bank Bldg.
Knoxville, Tennessee 

George C. Taylor 
2778 Kingston Pike 
Knoxville, Tennessee 

Gordon Browning-
Governor of the State of Tennessee 
Nashville, Tennessee 

James A. Barksdale
Commissioner of Education of the State of Tennessee 
Nashville, Tennessee 

Edward Jones
Commissioner of Agriculture of the State of Tennessee 
Nashville, Tennessee



34

Frank R. Ahlgren 
Commercial Appeal 
Memphis, Tennessee 

Thomas H. Allen 
P. 0. Box 388 
Memphis, Tennessee 

Wassell Randolph 
Commerce Title Building 
Memphis, Tennessee 

Clyde B. Austin 
Greeneville, Tennessee 

Harry S. Berry 
Hendersonville, Tennessee 

W. P. Cooper
Shelbyville, Tennessee 

E. W. Eggleston 
Hilldale Drive 
Nashville, Tennessee 

James T. Granbery 
Brentwood, Tennessee 

Sam J. McAllester 
James Building 
Chattanooga, Tennessee 

I. B. Tigrett 
Jackson, Tennessee 

Charles R. Yoltz 
Ripley, Tennessee

[fo l. 39] l x  U n ited  S tates D istrict  Court

Order op H earing on M otion  por J udgm ent on t h e  P lea d ­
in g s  by  T h r e e - J udge C ourt— Entered March 3, 1951

Came the parties by their attorneys and this case com­
ing on to be heard by a Three-Judge Court on plaintiffs’ 
motion for summary judgment and the Court having heard 
the argument of counsel on said motion took the case under 
advisement and directed parties to file briefs, defendants’ 
brief to be filed within three days and plaintiffs’ reply brief 
to be filed within three days after receipt of defendants’ 
brief.



35

[fol. 40] U n ited  S tates D istrict  C ourt 

Civil Action No. 1567

Ge n e  M it c h e l l  Gray., L in co ln  A nderson  B laken ey , J o­
s e p h  H u t c h  P atterson and J ack A lexander, Plaintiffs,

v.
T h e  B oard oe T rustees of t h e . U niversity* of T e n n e sse e , 

etc., et al., Defendants

[Pile endorsement omitted.]
Opinion'—F iled April 13, 1951

Before M iller , Circuit Judge, D are and T aylor, District 
Judges.

M iller , Circuit Judge. The plaintiffs by this action seek 
to enjoin the Board of Trustees of the University of Ten­
nessee, the University of Tennessee, and certain of its 
officers from denying them admission to the Graduate 
School and to the College of Law of the University because 
they are members of the Negro race.

In brief, the complaint alleges that the plaintiffs are 
citizens of the United States and of the State of Tennessee, 
are residents of and domiciled in the City of Knoxville, 
State of Tennessee, and are members of the Negro race; 
that plaintiffs, Gene Mitchell Gray and Jack Alexander, 
are fully qualified for admission as graduate students to 
the Graduate School of the University; that plaintiffs Lin­
coln Anderson Blakeney and Joseph Hutch Patterson are 
fully qualified for admission as undergraduate students 
in law to the College of Law of the University; that the 
four plaintiffs are ready, willing and able to pay all lawful 
charges and fees, and to comply with all lawful rules and 
regulations, requisite to their admission; that the Univer­
sity of Tennessee is a corporation duly organized and 
existing under the laws of Tennessee, was established and 
[fol. 41] is operated as a State function by the State of 
Tennessee, with two of its integral parts or departments 
being the Graduate School and the College of Law; that it 
operates as an essential part of the public school system



36

of the State of Tennessee, maintained by appropriations 
from the public funds of said State raised by taxation upon 
the citizens and taxpayers of the State including the plain­
tiffs ; that there is no other institution maintained or oper­
ated by the State at which plaintiffs might obtain the grad­
uate or legal education for which they have applied to the 
University of Tennessee; that the plaintiffs Gene Mitchell 
Gray and Jack Alexander applied for admission as grad­
uate students to the Graduate School of the University 
and that the plaintiffs Lincoln Anderson Blakeney and 
Joseph Hutch Patterson applied for admission as under­
graduate students in law to the College of Law of the 
University; and that on or about December 4, 1950, the 
Board of Trustees of the University refused and denied 
each and all of their applications for admission because 
of their race or color, relying upon the Constitution and 
Statutes of the State of Tennessee providing that there 
shall be segregation in the education of the races in the 
schools and colleges in the State. Plaintiffs contend that 
the action of the defendants in denying them admission 
to the University denies the plaintiffs, and other Negroes 
similarly situated, because of their race or color, their 
privileges and immunities as citizens of the United States, 
their liberty and property without due process of law, and 
the equal protection of the laws, secured by the 14th Amend­
ment of the Constitution of the United States and by Sec­
tion 41, Title 8, United States Code.

The defendants, by answer, state that they are acting 
under and pursuant to the Constitution and the Statutes 
of the State of Tennessee, by which they are enjoined from 
permitting any white and negro children to be received as 
scholars, together in the same school; that provision has 
been made by Tennessee Statutes to provide professional 
[fol. 42] education for colored persons not offered to them 
in state colleges for Negroes but offered for white stu­
dents in the University of Tennessee; that the State of 
Tennessee, under its Constitution and Statutes and under 
its police power, has adopted reasonable regulations for 
the operation of its institutions based upon established 
usages, customs and traditions, and such regulations being 
reasonable are not subject to challenge by the plaintiffs;



37

and that the 14th Amendment of the Constitution of the 
United States did not authorize the Federal Government 
to take away from the State the right to adopt all reason­
able laws and regulations for the preservation of the public 
peace and g-ood order under the inherent police power of 
the State.

The plaintiffs requested a hearing by a three-judge court 
under the provisions of Title 28 U. S. Code, Section 2281, 
and moved for judgment on the pleadings in that the 
pleadings showed that there was no dispute as to any 
material fact and they were entitled to judgment as a 
matter of law. The present three-judge court was desig­
nated and in due course the case was argued before it.

We are of the opinion that the case is not one for deci­
sion by a three-judge court. Title 28 IT. S. Code, Section 
2281, requires the action of a three-judge court only when 
an injunction is issued restraining the action of any officer 
of the State upon the ground of the unconstitutionality of 
such statute. We are of the opinion that the case presents 
a question of alleged discrimination on the part of the 
defendants against the plaintiffs under the equal protec­
tion clause of the 14th Amendment, rather than the uncon­
stitutionality of the statutory law of Tennessee requiring 
segregation in education. As such, it is one for decision 
by the District Judge instead of by a three-judge court.

The plaintiffs rely chiefly upon the decisions of the 
Supreme Court in Missouri v. Canada, 305 US 337, Sipuel v. 
Board of Regents, 332 US 631, Sweatt v. Painter, 339 US 
[fol. 43] 629 and McLaurin v. Oklahoma State Regents, 339 
US 637, in which State Universities were required to admit 
qualified negro applicants. In each of those cases the 
plaintiff was granted the right to be admitted to the State 
University on equal terms with white students because 
of the failure of the State to furnish to the negro applicant 
educational facilities equal to those furnished white stu­
dents at the State University. The rulings therein are 
based upon illegal discrimination under the equal protec­
tion clause of the 14th Amendment, not upon the uncon­
stitutionality of a State statute. In Sweatt v. Painter, 
supra, the Court expressly pointed out (339 U. S. at Page 
631) that it was eliminating from the case the question of



38

constitutionality of the State statute which restricted ad­
mission to the University to white students. Those cases 
did not change the rule, previously laid down by the Su­
preme Court, that State legislation requiring segregation 
was not unconstitutional because of the feature of segre­
gation, Plessy v. Ferguson, 163 US 537; McCabe v. Atchison 
T. db 8. F. Ry. Co., 235 U. S. 151, provided equal facilities 
were furnished to the segregated races. In Sweatt v. 
Painter, supra, the Supreme Court declined (339 U. S. at 
Page 636) to re-examine its ruling in Plessy v. Ferguson, 
supra. In Berea College v. United States, 211 US 45, and 
Gong Lum v. Rice, 275 US 78, state segregation statutes 
dealing specifically with education were not held to be un­
constitutional. The validity of such legislation was rec­
ognized in Missouri v. Canada, supra, wherein the Court 
stated (305 U. S. at page 344)—“ The State has sought to 
fulfill that obligation by furnishing equal facilities in sepa­
rate schools, a method the validity of which has been sus­
tained by our decisions. ’ ’ In that case, as well as in Sweatt 
v. Painter, supra, there were State statutes which required 
segregation for the purpose of higher education, but the 
decisions in those cases did not declare those statutes 
unconstitutional.
[fol. 44] By Chapter 43 of the Public Acts of 1941, the 
State of Tennessee authorized and directed the State Board 
of Education and the Commissioner of Education to pro­
vide educational training and instruction for negro citizens 
of Tennessee equivalent to that provided at the University 
of Tennessee by the State of Tennessee for white citizens 
of Tennessee, such training and instruction to be made 
available in a manner to be prescribed by the State Board 
of Education and the Commissioner of Education, pro­
vided, that the members of the negro race and white race 
should not attend the same institution or place of learning. 
The Supreme Court of Tennessee has held that Act to be 
mandatory in character. State ex rel. Michael v. Withani, 
179 Tenn. (15 Beeler) 250. Such legislation, specifically 
requiring equal educational training and instruction for 
white and negro citizens, appears to go further than did 
some of the State Statutes involved in the Supreme Court 
cases above referred to, which were not declared unconsti­



39

tutional in those cases. In our opinion, this case does not 
turn upon the unconstitutionality of the state statutes, but 
presents the same issue as was presented to the Supreme 
Court in Missouri v. Canada, supra, Sipuel v. Board of 
Regents, supra, Sweatt v. Painter, supra, and McLaurin v. 
Oklahoma State Regents, supra, namely, the question of 
discrimination under the equal protection clause of the 
14th Amendment. Accordingly, this case, at least in its 
present stage, is one for decision by the District Judge, 
in the district of its filing, on the issue of alleged discrimi­
nation against the plaintiffs under the equal protection 
clause of the 14th Amendment. Such an issue does not 
address itself to a three-judge court. Ex parte Bransford, 
310 US 354; Ex parte Collins, 277 US 565; Rescue Army v. 
Municipal Court, 331 US 549, 568-574.

The two Judges designated by the Chief Judge of the 
Circuit to sit with the District Judge in the hearing and 
decision of this case do now accordingly withdraw from 
the case, which will proceed in the District Court where 
it was originally filed. See Lee v. Roseberry, 94 Fed Supp. 
324, 328.

[fo l. 45] U nited  S tates D istrict  Court

G en e  M it c h e l l  G ray, L inco ln  A nderson B lakeney , J oseph  
H u t c h  P atterson and J ack A lexander, Plaintiffs,

v.
T h e  B oard of T rustees of t h e  U niversity  of T en n e sse e , 

etc., et al., Defendants

O rder by W h ic h  T wo J udges. W ith d rew — A p r i l  13, 1951

Before M iller , Circuit Judge, Darr and T aylor, District 
Judges.

This case was heard on the record, briefs and argument 
of counsel for respective parties.

And the Court being of the opinion that the issue in­
volved is alleged unjust discrimination against the plain­
tiffs under the Equal Protection Clause of the Fourteenth 
Amendment of the Constitution of the United States, and



40

not the constitutionality of certain statutes of the State 
of Tennessee, referred to in the pleadings;

And such issue not being one for decision by a three- 
judge court under the provisions of Section 2281, Title 28, 
U. S. Code;

It is ordered that the two Judges designated by the 
Chief Judge of the Circuit to sit with the District Judge, 
in whose District the action was filed, do now withdraw 
from the case, and that the case proceed before said Dis­
trict Judge in the District of its filing.

s/ Shackelford Miller, Jr., Circuit Judge, s / Leslie 
R. Darr, District Judge, s/ Robt. L. Taylor, Dis­
trict Judge.

[fol. 46] [File endorsement omitted]

I k  t h e  U nited ' S tates D istrict  Court

Ge n e  M it c h e l l  Gray e t  al.

v.
U niversity  of T en n e sse e  e t  at,.

Civil No. 1567

Op in io n — Filed April 20, 1951
This case was heard by a three-judge court on the record, 

briefs and argument of counsel for the respective parties 
on plaintiffs’ motion for summary judgment in their favor 
under Rule 56 of the Federal Rules of Civil Procedure.

In an opinion by Circuit Judge Miller, in which Chief 
District Judge Darr and District Judge Taylor of the 
Eastern District of Tennessee, concurred, the Court held 
that the issue involved is alleged unjust discrimination 
against the plaintiffs under the equal protection clause of 
the Fourteenth Amendment of the Constitution of the 
United States and not the constitutionality of the Ten­
nessee statutes and constitutional provisions referred to in 
the complaint. Following this opinion and the order en­
tered pursuant thereto, Judge Miller and Judge Darr with­



41

drew from the case, which is now before this Court for 
decision on the motion.

Plaintiffs Gray and Alexander have applied for admis­
sion to the Graduate School and Plaintiffs Blakeney and 
Patterson have applied for admission to the College of 
Law, of the University of Tennessee. All admittedly are 
qualified for admission, except for the fact that they are 
negroes.
[fol. 47] The matter of their applications was referred 
by University authorities to the Board of Trustees, who 
disposed of the matter by the following resolution:

“ Whereas, the Constitution and the statutes of the 
State of Tennessee expressly provide that there shall 
be segregation in the education of the races in 
schools and colleges in the State and that a viola­
tion of the laws of the State in this regard subjects 
the violator to prosecution, conviction, and punish­
ment as therein provided; and,

“ Whereas, this Board is bound by the Constitutional 
provision and acts referred to;

“ Be it therefore resolved, that the applications by 
members of the Negro race for admission as stu­
dents into The University of Tennessee be and the 
same are hereby denied.”

Following the indicated action by the Board of Trustees, 
plaintiffs filed their joint complaint for themselves and on 
behalf of all negro citizens similarly situated, praying for 
a temporary and, after hearing, a permanent order re­
straining the defendants from executing the exclusion 
order of the Board of Trustees against the plaintiffs, or 
other negroes similarly situated, and from all action pur­
suant to the constitution and statutes of the State of 
Tennessee, and the custom or usage of the defendants, 
respecting the requirement of segregation of whites and 
negroes in state-supported educational institutions and 
exclusion of negroes from the University of Tennessee, 
their references being to Article 11, sec. 12, of the state 
constitution, to sections 2403.1, 2403.3, 11395, 11396, and 
11397 of the Tennessee Code, and the custom and usage of 
defendants of excluding negroes from all colleges, schools,



42

departments, and divisions of the University of Tennessee, 
including the Graduate School and the College of Law.

Defenses interposed are nine in number, but in substance 
they are these: That defendants, in rejecting the applica­
tions of the plaintiffs, were and are obeying the mandates 
of the segregation provisions of the constitution and laws 
of the State of Tennessee; that those provisions are in 
exercise of the police powers reserved to the states and 
are valid, the Fourteenth Amendment and laws enacted 
thereunder to the contrary notwithstanding, and that these 
plaintiffs have no standing to bring this action for the 
[fol. 48] reason that they have not exhausted their admin­
istrative remedies under the equivalent facilities act of 
1941, Code section 2403.3. The plaintiffs, after alleging in 
their complaint that the University of Tennessee maintains 
a Graduate School and a College of Law which offer to 
white students the courses sought by plaintiffs’ make the 
following specific allegation, which defendants, for failure 
to deny, admit: “ There is no other institution maintained 
or operated by the State of Tennessee at which plaintiffs 
might obtain the graduate and/or legal education for which 
they respectively have applied to The University of Ten­
nessee.”

It is, of course, recognized that the Constitution of the 
United States is one of enumerated and delegated powers. 
To remove original doubt as to the character of federal 
powers, the states adopted the Tenth Amendment, which 
provides: “ The powers not delegated to the United States 
by the Constitution, nor prohibited by it to the States, are 
reserved to the States respectively, or to the people.” The 
Constitution contains no specific delegation of poolice 
powers, and those powers are accordingly reserved. But 
a glance discloses that, in relation to the Tenth Amend­
ment, the Constitution contains two groups of powers, 
namely, the previously-delegated powers and the subse­
quently-delegated powers. By adoption of the Fourteenth 
Amendment, following adoption of the Tenth Amendment, 
the states consented to limitations upon their reserved 
powers, particularly in the following respects: “ . . . No 
State shall make or enforce any law which shall abridge 
the privileges or immunities of citizens of the United



43

States; nor shall any State deprive any person of life, 
liberty, or property, without due process of law; nor deny 
to any person within its jurisdiction the equal protection 
of the laws. . . . ”

It is recognized that ‘ ‘ the police power of a state extends 
beyond health, morals and safety, and comprehends the 
duty, within constitutional limitations, to protect the well­
being and tranquility of a community.” Kovacs v. Cooper, 
336 U. S. 77, 83. (Italics supplied). States “ have power 
[fol. 49] to legislate against what are found to be injurious 
practices in their internal commercial and business affairs, 
so long as their laws do not run afoul of some specific con­
stitutional prohibition, or of some validj federal law.” 
Whitaker v. North Carolina, 335 U. S. 525, 536. (Italics 
supplied). In the foregoing quotations, the italicized por­
tions point up the limitation upon the exercise of a state’s 
police powers.

Segregation by law may, in a given situation, be a valid 
exercise of the state’s police powers. It has been so rec­
ognized with respect to schools. Gong Lum et al v. Rice 
et al, 275 U. S. 78. Also, as to segregation on intrastate 
trains. Plessy v. Ferguson, 163 U. S. 537. But where 
enforcement by the state of a law ran afoul of the Four­
teenth Amendment by denying members of a particular 
race or nationality equal rights as to property or the 
equal protection of the laws, the state action has been 
condemned. This was the result where state law discrim­
inated against aliens as to the privilege of employment. 
Truax v. Raich, 239 U. S. 33. The same result was reached 
as to enforcement of restrictive covenants in deeds, Shelley 
et ux v. Kraemer et ux, 334 U. S. 1; in the housing segre­
gation cases, Richmond v. Deans, 4 Cir.., 37 F. 2d 712, 
affirmed 281 IT. S. 704; Buchanan v. Warley, 245 U. S. 60; 
and in the cases where segregation has resulted in inequal­
ity of educational opportunities for negroes, Sweatt v. 
Painter et al, 339 IT. S. 629; McLaurin v. Oklahoma State 
Regents, 339 U. S. 637. From these cases it appears to be 
well settled that exercise of the state’s police powers ceases 
to be valid when it violates the prohibitions of the Four­
teenth Amendment. The defense on this ground, there­
fore, fails.



44

The second question is whether the plaintiffs have pres­
ent standing to bring this action. To understand the de­
fense interposed here, it is desirable to look at the his­
torical background of the act of 1941, of which the Court 
takes judicial notice.
[fol. 50] On October 18, 1939, six negroes applied for 
admission to the University of Tennessee, four to the Grad­
uate Department and two to the College of Law. Being 
denied admission, they filed their separate petitions for 
mandamus in the Chancery Court of Knox County, Ten­
nessee, to require their admission. Following denial of 
the petitions in a consolidated proceeding, an appeal wns 
taken to the Supreme Court of Tennessee, where the action 
of the Chancellor was affirmed by opinion filed November 7, 
1942. State ex rel. Michael et al v. Witham et al, 179 
Tenn. 250. The case was not disposed of by the Chan­
cellor on its merits, but on the ground that it had become 
moot. While the case was pending in the Chancery Court, 
the state legislature enacted the act of 1941, now carried 
in the Code as sec. 2403.3, and entitled, Educational facil­
ities for negro citizens equivalent to those provided for 
white citizens:

“ The state board of education and the commissioner 
of education are hereby authorized and directed to 
provide educational training and instruction for negro 
citizens of Tennessee equivalent to that provided at 
the University of Tennessee by the State of Tennessee 
for white citizens of Tennessee. Such training and 
instruction shall be made available in a manner to be 
prescribed by the state board of education and the 
commissioner of education; provided, that members 
of the negro race and white race shall not attend the 
same institution or place of learning. The facilities 
of the Agricultural and Industrial State College, and 
other institutions located in Tennessee, may be used 
when deemed advisable by the state board of educa­
tion and the commissioner of education, insofar as 
the facilities of same are adequate.”

Following enactment of the statute a supplemental answer 
was filed in the case then pending, in which it was averred



45

that pursuant to the Act certain committees had been ap­
pointed by the state board of education, with instructions 
to report at the board’s next regular meeting, an averment 
which suggested that the act of 1941 was to be made oper­
ative expeditiously.

The Supreme Court of Tennessee, in affirming the Chan­
cellor’s dismissal of the consolidated case, construed the 
act of 1941 to be mandatory in character. “ No discretion 
whatever is vested in the State Board of Education under 
the Act as to the performance of its mandates. The man­
ner of providing educational training and instruction for 
[fol. 51] negro citizens equivalent to that provided for 
white citizens at the University of Tennessee is for the 
Board of Education to determine in its sound discretion, 
but the furnishing of such equivalent instruction is manda­
tory.” State ex rel. Michael et al v. Witham et al, 179 
Tenn. 250, 257.

The court also said at page 257: “ Upon the demand of 
a negro upon the State Board of Education for training 
and instruction in any branch of learning taught in the 
University of Tennessee, it is the duty of the Board to 
provide such negro with equal facilities of instruction in 
such subjects as that enjoyed by the students of the Uni­
versity of Tennessee. The State Board of Education is 
entitled to reasonable advance notice of the intention of 
a negro student to require such facilities. . . .  No such 
advance notice by applicants is shown in the record. ’ ’

At page 258, the court further said: “ It does not appear 
that the State Board of Education is seeking in any way to 
evade the performance of the duties placed upon it by Chap­
ter 43, Public Acts 1941, or that it is lacking sufficient funds 
to carry out the purposes of the Act. The state having pro­
vided a full, adequate and complete method by which negroes 
may obtain educational training and instruction equivalent 
to that provided at the University of Tennessee, a decision 
of the issues made in the consolidated causes becomes un­
necessary and improper. The legislation of 1941 took no 
rights away from appellants; on the contrary the right to 
equality in education with white students was specifically 
recognized and the method by which those rights would be



46

satisfied was set forth in the legislation. What more could 
be demanded?”

By failure to deny the allegations of the complaint, de- 
[fol. 52] fendants admit that the directive, though manda­
tory, has not been carried out. Nevertheless, it is urged by 
defendants that these plaintiffs have no standing here until 
they have petitioned the state board of education to fur­
nish the equivalent educational training and instruction for 
negroes provided for by the act. The Supreme Court of the 
state noted in its opinion that the then applicants for ad­
mission to the University of Tennessee had given to the 
state board “ no such advance notice” of a desire to be 
furnished facilities under the act. That omission is under­
standable here for the reason that their applications for 
admission to the University of Tennessee had not been 
finally disposed of by the courts, and the need of their 
applying to the state board had not been established.

Since the enactment of the Act of 1941 and the decision 
in State ex rel. Michael et al v. Witham et al, 179 Tenn. 
250, the Supreme Court of the United States has empha­
sized the pronouncement of one of its older cases as to a 
particular element of equal protection. In Missouri ex rel. 
Gaines v. Canada, 305 U. S. 337, it appeared that Lincoln 
University, a state-supported school for negroes, intended 
to establish a law school. As to this intention the court 
said: “ . . . it cannot be said that a mere declaration of 
purpose, still unfulfilled, is enough.” Missouri ex rel. 
Gaines v. Canada, 305 U. S. 337, 346. In the same case, at 
page 351, the court said: “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 facilities for legal educa­
tion substantially equal to those which the state there af­
forded for persons of the white race, . . . ” Later declara­
tions indicate that the two quotations should be read to­
gether and that when so read they state the requirement 
of equality of opportunity to be personal and immediate.

In Fisher v. Hurst, 333 U. S. 147, the court emphasized 
its position that equality of opportunity in education means 
present equality, not the promise of future equality. This 
reemphasized the necessity of equality as to time of an 
earlier decision, where the court said: “ The State must



47

[fol. 53] provide it for her in conformity with the equal pro­
tection clause of the Fourteenth Amendment and provide 
it as soon as it does for applications of any other group. ’ ’ 
Sipuel v. Board of Regents of the University of Oklahoma 
et al, 332 U. S. 631. In the holding in McLaurin v. Okla­
homa State Regents, 339 U. S. 637, 642, the court said: “We 
conclude that the conditions under which this appellant is 
required to receive his education deprive him of his per­
sonal and present right to the equal protection of the 
laws.” That equality of educational opportunity for 
negroes means present equality was emphasized once more 
in Sweatt v. Painter et al, 339 U. S. 629, 635: “ This Court 
has stated unanimously that ‘The State must provide (legal 
education) for (petitioner) 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’. 
Sipuel v. Board of Regents, 332 U. S. 631, 633.” In view of 
these recent declarations of the Supreme Court of the 
United States, this Court is forced to conclude that the 
defense of exhaustion of administrative remedies fails.

The Court finds that under the Gaines, Sipuel, Sweatt and 
McLaurin cases heretofore cited, these plaintiffs are being- 
denied their right to the equal protection of the laws as 
provided by the Fourteenth Amendment and. holds that 
under the decisions of the Supreme Court the plaintiffs are 
entitled to be admitted to the schools of the University of 
Tennessee to which they have applied for admission. Be­
lieving that the University authorities will either comply 
with the law as herein declared or take the case up on 
appeal, the Court does not deem an injunctive order pres­
ently to be appropriate. The case, however, will be retained 
on the docket for such orders as may seem proper when it 
appears that the applicable law has been finally declared.

/s /  Robt. L. Taylor, United States District Judge.



[Title omitted]

[File endorsement omitted.]

P et it io n  fo r  A ppea l— Filed May 7, 1951
Considering themselves aggrieved by the order and decree 

of this Court entered on April 13, 1951, Gene Mitchell Gray, 
Lincoln Anderson Blakeney, Joseph Hutch Patterson and 
Jack Alexander, plaintiffs herein, do hereby pray that an 
appeal be allowed to the Supreme Court of the United 
States, from said order and decree and from each and every 
part thereof; that citation be issued in accordance with 
law; that an order be made with respect to the appeal 
bond to be given by said plaintiffs and that the amount of 
security be fixed by the order allowing the appeal, and that 
the material part to the record, proceedings and paper 
upon which said order and decree was based, duly authenti­
cated, be sent to the Supreme Court of the United States 
[fol. 55] in accordance with the rules in such cases made 
and provided.

Respectfully submitted, Carl A. Cowan, 101 % Yf. 
Vine Avenue, Knoxville, Tennessee, Avon N. Wil­
liams, Jr., 511 E. Vine Avenue, Knoxville 15, Ten­
nessee, Z. Alexander Looby, 419 Fourth Ave., North 
Nashville, Tennessee, Thurgood Marshall, 20 West 
40th Street, New York 18, New York, Robert L. 
Carter, 20 West 40th Street, New York 18, New 
York, Counsel for Plaintiffs-Appellants.

48

[fo l. 54] U nited  S tates D istrict  C ourt

[fo ls . 56-57] S ta tem en t  R equired  by P aragraph 2, R u le  12 
of t h e  R ules  of t h e  S u pr em e  Court of t h e  U nited  
States

[Omitted in printing.]



49

[Title omitted]

O r d e r  A l l o w i n g  A p p e a l —May 7, 1951
Gene Mitchell Gray, Lincoln Anderson Blakeney, Joseph 

Hutch Patterson and Jack Alexander, having made and 
filed their petition praying for an appeal to the Supreme 
Court of the United States, from the order and decree of 
this Court in this cause entered on April 13, 1951, and each 
and every part thereof, and having presented their Assign­
ment of Errors and Prayer for Reversal and their state­
ment as to the jurisdiction of the Supreme Court of the 
United States on appeal, pursuant to the statutes and rules 
of the Supreme Court of the United States in such cases 
made and provided,

Now, therefore, it is hereby ordered that said appeal be 
and the same is hereby allowed as prayed for.

It is further ordered that the amount of the appeal bond 
be and the same is hereby fixed in the sum of $250.00 with 
[fol. 59] good and sufficient security and shall be condi­
tioned as may be required by law.

It is further ordered that citation shall issue in accord­
ance with law.

Approved for entry:
Leslie R. Darr, District Judge.

ffo l. 58] U nited  S t a t e s  D istrict  Court

[fols. 60-61] U n i t e d  S t a t e s . D i s t r i c t  C o u r t

Citation in usual form showing service on John J. Hooker 
and K. Harlan Dodson, Jr., omitted in printing.



50

[Title omitted]

A s s i g n m e n t  o e  E r r o r s  a n d  P r a y e r  f o r  R e v e r s a l -—Idled
May 7, 1951

[File endorsement omitted.]
Gene Mitchell Gray, Lincoln Anderson Blakeney, Joseph 

Hutch Patterson and Jack Alexander, plaintiffs in the 
above-entitled cause, in connection with their appeal to the 
Supreme Court of the United States, hereby file the fol­
lowing Assignment of Errors upon which they will rely in 
their prosecution of said appeal from the order and decree 
of the District Court entered on April 13, 1951:

1. The District Court erred in refusing to grant plain­
tiffs ’ motion for judgment on the pleadings against defend­
ants for the reason that the order of defendants refusing to 
admit plaintiffs to the University of Tennessee solely be­
cause of their race and color was based upon the statutes 
and constitution of the State of Tennessee, in violation of 
the equal protection clause of the Fourteenth Amendment 
to the Constitution of the United States.
[fol. 63] 2. The District Court erred in holding that the
issues here raised did not go to the constitutionality of the 
statutes of the State of Tennessee and of the order of the 
defendants as an administrative agency of the State, for 
the reason that in the order refusing plaintiffs’ admission 
and their answer to the complaint, defendants seek to justify 
their refusal to admit plaintiffs to the University of Ten­
nessee because of their race and color on the grounds that 
the Constitution and statutes of the State of Tennessee make 
mandatory the denial of plaintiffs ’ applications.

3. The District Court erred in refusing to grant plain­
tiffs’ prayer for a temporary and permanent injunction as 
prayed for in their complaint,

4. The District Court erred in holding that this cause 
did not come within the jurisdiction of a district court of 
three judges as such jurisdiction is defined in Title 28, 
United States Code, section 2281.

[fo l. 62] U nited  S tates D istrict  Court



51

5. The District Court erred in ordering the dissolution 
of the three-judge court and in referring this matter for 
hearing before a United States District Court of one judge, 
for the reason that under Title 28, United States Code, sec­
tion 2281, one district judge is without power and authority 
to grant the affirmative injunctive relief herein prayed for 
since such injunctive relief could only be granted on the 
grounds that defendants’ order denying plaintiffs’ admis­
sion to the University of Tennessee, and Article 11, section 
12 of the Constitution of the State and sections 11395,11396, 
and 11397 of the Code of Tennessee on which said order was 
based, are unconstitutional as applied in this case.

Wherefore, plaintiffs Gene Mitchell Gray, Lincoln Ander­
son Blakeney, Joseph Hutch Patterson and Jack Alexander 
[fol. 64] pray that the order and decree of the District 
Court entered on April 13, 1951, be reversed, and for such 
other relief as the Court may deem fit and proper.

Carl A. Cowan, 101% W. Vine Avenue, Knoxville, 
Tenn, Avon N. Williams, Jr., 511 E. Vine Avenue, 
Knoxville 15, Tenn., Z. Alexander Looby, 419 
Fourth Avenue, North Nashville, Tennessee, Thur- 
good Marshall, 20 West 40th St., New York 18, 
N. Y., Robert L. Carter, 20 West 40th St., New 
York 18, N. Y., Counsel for Plaintiffs-Appellants.

[fols. 65-92] A f f i d a v i t  o f  S e r v i c e —(Omitted in printing)

[Ms. 93-94] U nited  S tates D istrict  Court 

P raecipe—(Omitted in printing)

[fo l. 95] Cl e r k ’s Certificate  of Cash  M oney D eposit as 
S ecurity  for C osts of A ppeal—(Omitted in printing)

[fol. 96] S u p p l e m e n t a r y  P r a e c i p e —(Omitted in printing)



52

[fo l. 97] A ffidavit of S ervice of Order A m en d in g  O rder 
A llow ing  A ppea l , Cl e r k ’s Certifica te  of Cash  M oney 
D epo sit , and S u pplem en ta ry  P raecipe  on A ttorneys for 
D efen d a n ts-A ppe l l ee s— (Omitted in printing)

[fols. 98-101] U n i t e d  S t a t e s  D i s t r i c t  C o u r t

[Title omitted]

O r d e r  A m e n d i n g  O r d e r  A l l o w i n g  A p p e a l — May 14, 1951
In this cause, on application of the plaintiffs-appellants 

and for good cause shown, it is hereby ordered that the 
Order allowing the Appeal heretofore entered in Civil Order 
Book 8 page 1030 be and the same is hereby amended by 
striking out the third paragraph of said Order, to-wit: 
“ It is further ordered that the amount of the appeal bond 
be and the same is hereby fixed in the sum of $250,00 with 
good and sufficient security and shall be conditioned as may 
be required by law.” , and substituting in lieu thereof the 
following: “It is further ordered that the amount of the 
appeal bond be and the same is hereby fixed in the sum of 
$250.00 with good and sufficient security and shall be con­
ditioned as may be required by law, or in lieu of said appeal 
bond, that security for costs of said appeal shall be given 
by cash money deposit in the sum of $250.00 and shall be 
conditioned as may be required by law. ’ ’

Approved for entry:
Leslie R. Darr, District Judge.

Approved:
Carl A. Cowan, Attorney for Plaintiffs-Appellants.

[fo ls . 102-103] A ffidavit of S ervice of S ta tem en t  by 
A ppellees  of Gro u n d s  in  Oppo sitio n  to A ppella te  J u ris­
diction  of t h e  S u pr em e  C ourt of t h e  U nited  S tates 
P ursua n t  to S u pr e m e  Court R u l e  12, and M otion to 
D ism iss  A ppeal— (Omitted in printing)



53

[fol. 104] The United States of America, Eastern District 
of Tennessee, Northern Division, ss.
Clerk’s Certificate to foregoing transcript omitted in 

printing.

[fols. 105-106] In t h e  S u p r e m e  C o u r t  o e  t h e  U n i t e d

S t a t e s

October Term, 1951 

No. 120 

[Title omitted]

S ta tem en t  of P o in ts  to B e R elied  U pon  and D esignation  
of P arts of R ecord to B e P rin ted— Filed June 22,1951

1. Appellants adopt for their statement of points upon 
which they intend to rely in their appeal to this Court the 
points contained in the Assignment of Errors heretobefore 
filed.

2. Appellants designate the entire record, as filed in the 
above-entitled case, for printing by the Clerk of this Court.

Robert L. Carter, Counsel for Appellants.

[File endorsement omitted.]

[fol. 107] S u p r e m e  C o u r t  o f  t h e  U n i t e d  S t a t e s  

No. 120, October Term, 1951 

[Title omitted]

O r d e r — October 15, 1951
The statement of jurisdiction in this case having been 

submitted and considered by the Court, further considera­
tion of the question of the jurisdiction of this Court and of 
the motion to dismiss is postponed to the hearing of the 
case on the merits.

( 8161)



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