Sipuel v Board of Regents of UOK Brief of Amicus Curiae

    ^ujtrrmc GImtrt nf tljr lHuitrft States
October T erm, 1947

No. 3(19

ADA LOIS SIPUEL,
Petitioner,

v.
HOARD OF REGENTS OF THE UNIVERSITY OF 
OKLAHOMA, GEORGE L. CROSS, MAURICE H. 
MERRILL, GEORGE WADSACK and ROY GITTTNGER,

Respondents.

OX WRIT OF CERTIORARI TO THE SUPREME COURT 
OF THE STATE OF OKLAHOMA

BRIEF OF AMERICAN CIVIL LIBERTIES UNION, 
AS AMICUS CURIAE

A merican Civil Liberties Union, 
Amicus Curiae,

A rthur Garfield H ays,
Counsel.

W alter Gellhorn,
Osmond I\. F raenkel,

Of the New York Bar,
Of Counsel.

*1 7



I N D E X

PAG E
I nterest of A merican Civil Liberties U nion ............. 1

F acts ................................................................................................ 2

Point I.—The requirement that petitioner give notice 
that a separate law school be opened and the 
inevitable delay in opening it cast an unequal 
burden on petitioner .................................................. 3

P oint II.—Admission of petitioner to a separate law 
school for Negroes would not constitute equal 
protection .....................................................................  5

Point III.— Segregation of Negroes from whites vio­
lates the equal protection clause ..............................  7

Table of Cases

Gong Luiri v. Rice, 275 U. S. 7 8 ......................................  8
McCabe v. Atchison, T. S. F. Ry., 235 U. S. 151 ....... 4
Missouri ex rel. Gaines v. Canada, 305 U. S. 337 .......3, 4, 5
Mitchell v. United States, 313 U. S. 8 0 ........................  4
Plessy v. Ferguson, 163 U. S. 537 ................................. 8
Strauder v. West Virginia, 100 U. S. 303 ....................  7, 8

Constitutional Provisions

Article VI .........
13th Amendment 
14th Amendment 
15th Amendment

4

1, 3,4, 7,8 
.......  7



Supreme Court ot tljr H&mUb Stairs
October T erm, 1947

No. 369

--------- *  i ■  ---------

A da L ois Sipuel,
Petitioner,

• v.

B oard of R egents of the U niversity of Oklahoma, 
George L. Cross, M aurice H. M errill, George W adsack 
and R oy Gittinger,

Respondents.

ON WRIT OF CERTIORARI TO THE SUPREME COURT 

OF THE STATE OF OKLAHOMA

-----------  *  i m  ------------

BRIEF OF AMERICAN CIVIL LIBERTIES UNION, 
AS AMICUS CURIAE

The American Civil Liberties Union, which is devoted 
to the furtherance of the civil rights guaranteed by the 
Constitution of the United States, submits this brief in 
the belief that respondents’ refusal to admit petitioner to 
the School of Law of the University of Oklahoma consti­
tutes a violation of that provision of the 14th Amendment 
to the Constitution of the United States which provides 
that no State shall “ deny to any person within its juris­
diction the equal protection of the laws.”



2

The Facts

The facts have been admitted by respondents (E. 22-25). 
Petitioner brought this proceeding in the District Court 
of Cleveland County, Oklahoma, seeking mandamus to 
compel respondents to admit her to the School of Law of 
the University of Oklahoma (R. 2-6). Petitioner is a 
resident and citizen of the United States and of Oklahoma; 
she desires to practice law in Oklahoma and, to that end, 
being fully qualified financially, scholastically and morally, 
applied for admission on January 14, 1946, to the School 
of Law of the University of Oklahoma, the only law school 
maintained by the state (R. 22, 23). Petitioner was 
refused admission solely because she is a Negro (R. 24), 
and this suit followed on April 6, 1946 (R. 2). Respond­
ents are the Board of Regents of the University of Okla­
homa, which has authority as to the admission of students 
to the University, George L. Cross, President of the 
University, Maurice H. Merrill, Dean of the School of 
Law, Roy Gittinger, Dean of Admissions, and George 
Wadsack, Registrar (R. 3-4, 14). All the personal 
respondents act pursuant to orders of respondent the 
Board of Regents of the University (R. 4, 14).

The University of Oklahoma is maintained by public 
funds raised by taxation, and the School of Law specializes 
in Oklahoma law (R. 23). Indeed, unless petitioner is 
permitted to attend the School of Law, she will be placed 
“ at a distinct disadvantage”  both at the Oklahoma bar 
and in the Oklahoma public service, vis a vis those who 
have gone to the School of Law (R. 23), to which, how­
ever, only whites are admitted (R. 16-17, 23-24).

Petitioner did not apply to the Board of Regents of 
Higher Education of Oklahoma to set up a separate law 
school for Negroes, although after this action was filed



3

that Board considered whether it should open sucli a 
school and concluded that it had no funds so to do and 
that it had never requested or been asked to request such 
funds from the State Legislature (R. 24-25).

The District Court of Cleveland County denied the writ 
of mandamus (R, 25), on the ground that petitioner had 
not chosen the proper form of action in which to raise 
the Constitutional question (R. 21-22). The Supreme 
Court of Oklahoma affirmed (R. 51). It explicitly refused 
to pass on whether mandamus was the appropriate rem­
edy, and decided “ the merits”  of the claim that failure 
to admit petitioner to the School of Law constituted a 
discrimination “ on account of race contrary to the 14th 
Amendment to the United States Constitution”  (R. 38). 
The reasoning of the Supreme Court was that the state's 
policy, specifically embodied in its statutes, is to segre­
gate Negroes and whites in its educational institutions, 
that this policy is valid under the language of Missouri 
ex rel. Gaines v. Canada, 305 U. S. 337, and other cases, 
and that if the State may satisfy the 14th Amendment 
by a separate law school for Negroes, it was incumbent 
upon petitioner to make known by demand or other form 
of notice to the Board of Regents of Higher Education 
her desire for separate legal education, which she has 
failed to do (R. 38-51).

POINT I

The requirement that petitioner give notice that a 
separate law school be opened and the inevitable delay 
in opening it cast an unequal burden on petitioner.

Assuming arguendo that Oklahoma could and would, 
after appropriate demand or notice, open a law school 
which petitioner may attend, “ equal”  in the Constitu­



4

tional sense to the law school to which she has applied 
for admission, that fact would not, contrary to the posi­
tion of the Court below and of respondents, indicate 
satisfaction of the equal protection clause. It is not 
asserted that whites are subject to any burden to give 
such notice or make such demand. It is undisputed (R. 
24-25) that there are no State funds available with which 
to open without delay a separate law school. The addi­
tional burden to give notice or make demand and the 
inevitable delay in opening another school in themselves 
make plain the inequality of treatment petitioner has 
been accorded. That inequality is not to be justified by 
reference to the so-called “ valid”  state policy of segre­
gation. Even assuming, without conceding, that separate 
facilities for Negroes may in some instances satisfy the 
demands of equal protection, we start, hy reason of the 
Supremacy Clause of the Constitution, Article VI, with 
the 14th Amendment which prohibits the state from deny­
ing to any “ person”  the “ equal protection of the laws.”  
We do not start with the assumption that segregation is 
“ valid”  per se so that additional burdens, both of time 
and circumstance, may be visited on a Negro, asserted 
by the Oklahoma Supreme Court to be the first such to 
desire legal education in Oklahoma (R. 41), in order to 
enable the state to pursue its policy of segregation. The 
right given by the equal protection clause is a personal, 
not a group, right. McCabe v. Atchison, T. S. F. Ry., 
235 U. S. 151, 161, 162; Mitchell v. United States, 313 
IT. S. 80, 97; Missouri ex rel. Gaines v. Canada, supra, 
350, 351. The state may not, in the words of the Amend­
ment, “ deny to any person”  that right. Segregation 
does not justify discrimination, even on the assumption 
that segregation does not demonstrate discrimination.



5

Further, the discrimination is not “ excused by what is 
called its temporary character.”  Missouri ex rel. Gaines 
v. Canada, supra, 352. Petitioner was entitled to “ equal 
protection”  when she applied for admission on January 
14, 1946, to the only law school supported by the state. 
The additional burden and delay imposed upon her by 
the Court below demonstrate the lack of “ equal protec­
tion”  which she has received.

POINT II

Admission of petitioner to a separate law school 
for Negroes would not constitute equal protection.

Even if we were to assume for the sake of argument 
that a law school physically identical to that to which 
petitioner has applied were available to her, and that 
segregation in some contexts is valid, the segregation of 
petitioner in a separate school to which only Negroes 
would be admitted would, by the very nature of the 
educational process, deny to petitioner the equal protec­
tion to which she is entitled.

The agreed facts of record show that petitioner “ will 
be placed at a distinct disadvantage at the bar of Okla­
homa and in the public service of the aforesaid State with 
persons who have had the benefit of the unique prepara­
tion in Oklahoma law and procedure offered to white 
qualified applicants in the School of Law of the Univer­
sity of Oklahoma, unless she is permitted to attend the 
School of Law of the University of Oklahoma”  (R. 23). 
Petitioner can reach an equal footing at the bar of Okla­
homa and in its public service with white lawyers only 
if she attends the School of Law of the University of 
Oklahoma and participates in its “ unique”  course. Unless



6

slip does so, she “ will be placed at a distinct disadvan­
tage.”  Tt follows that she will he placed at a disadvan­
tage if she is admitted, not to the school giving “ unique”  
preparation, but, to a law school which will educate only 
Negroes, perhaps only herself.

It is plain why the course given at any such separate 
school could not be equal to the “ unique”  course given at 
the Law School of the University. Even the novitiate will 
admit that education, and legal education in particular, 
is not a matter of bricks and mortar or even of books 
and paper. Instructors so successful as to give a 
“ unique”  course could hardly be duplicated. But neither 
is legal education the sole work of the professors. The 
students play a substantial role in individual self-instruc­
tion, and in the education of one another. Which lawyer 
is there whose abilities were not sharpened and enhanced 
by the varied personalities, abilities and propensities of 
his fellow students at law school? What makes a great 
law school, the books, the professors, or the students? 
It would be a bold Oklahoman who could say that not 
one white student in the law school of the State Univer­
sity was capable of contributing to the legal education 
of petitioner.

The Court below made much of the fact that petitioner 
is the first Negro to desire legal education within Okla­
homa (R. 41). Will a legal education in which petitioner 
will have few, if any, fellows occupying a similar educa­
tional position be as fruitful as one in which the ideas 
of the official educators will be tested, perhaps rejected, 
by varied intellects within a substantial student body? 
Further, in the absence of the point of view of the white 
one-half or more of the State’s population, those ideas 
could hardly be effectually tested and appreciated. Peti­



tioner is entitled to a legal education equal to that of the 
white students, who could contribute to her education 
as well as their own.

POINT III

Segregation of Negroes from whites violates the 
equal protection clause.

The 14th Amendment is one of the three Constitutional 
provisions “ having a common purpose; namely, securing 
to a race recently emancipated, * * * the enjoyment 
of all the civil rights that under the law are enjoyed by 
white persons.”  Strauder v. West Virginia, 100 U. S. 
303, 306. Before the Civil War discrimination against 
Negroes had been habitual both in the community’s atti­
tude and in the official laws of the states. Indeed, most 
Negroes were slaves, and the race had long been regarded, 
officially and unofficially, as inferior and subject. The 
13th, 14th, and 15th Amendments were a reaffirmation of 
the principle that those who were equal in the sight of 
Cod were equal too in the sight of the Nation. And so, 
the Nation prohibited the States from proceeding upon 
an assumption of the inferiority of Negroes which the 
blood of a great war had washed away. By the equal 
protection clause the Negroes were given “ a positive 
immunity, or right, most valuable to the colored race,— 
the right to exemption from unfriendly legislation against 
them distinctively as colored,—exemption from legal dis­
criminations, implying inferiority in civil society.”  
Strauder v. West Virginia, supra, 307-308. The States 
were prohibited from taking action with respect to the 
Negroes as would be “ a brand upon them, affixed by the



8

law, an assertion of their inferiority, and a stimulant 
to that race prejudice which is an impediment to securing 
to individuals of the race that equal justice which the 
law aims to secure to all others.”  Strauder v. West Vir­
ginia, supra, 368. (Italics ours.)

What more explicit “ brand”  upon petitioner, what 
clearer “ assertion”  of her “ inferiority” , could there be 
than the segregation of her in a law school for Negroes 
only? Segregation in itself serves no rational purpose 
other than that found in the asserted inferiority of the 
Negro. That purpose the Nation would not condone.

Even the case of Plessy v. Ferguson, 163 U. S. 537, 
551, in which segregation of the races in separate rail­
road cars was upheld, recognized that the State could 
not “ stamp”  the Negroes “ with a badge of inferiority” , 
but the Court held that “ solely because the colored race 
chooses to put that construction upon it”  Negroes should 
not assume that segregation implies inferiority, for the 
dominant whites and the state which they control make no 
such assumption. There have been subsequent judicial 
expressions which have followed the Plessy case without 
examining its basic factual assumption that segregation is- 
no assertion of inferiority. Gong Lum v. Rice, 275 U. S. 
78, and cases cited. In each case in which segregation has 
been upheld there has been no recognition that or investi­
gation whether segregation of itself implies inferiority. 
Can Oklahoma honestly say today that the official segre­
gation of petitioner and her exclusion from the School of 
Law of the University of Oklahoma, where only whites 
may attend, is based any less on a notion of inferiority 
than would be a brand or a chain? The equal protection 
clause loosed the shackles and covered over the scars of



the brands which had been inflicted upon “ any person” . 
No less does that clause shield petitioner from the brand 
of segregation.

The judgment should be reversed.

Respectfully submitted,

A merican Civil L iberties U nion, 
Amicus Curiae,

A rthur Garfield H ays, 
Counsel.

W alter Gellhorn,
Osmond K. F raenkel,

Of the New York Bar,
Of Counsel.