Meredith v. Fair Transcript of Record Vol. II

    TRANSCRIPT OF RECORD

UNITED STATES

COURT of APPEALS
F I F T H  C I R C U I T

No.

JAMES H. MEREDITH, 

VERSUS

APPELLANT

CHARLES DICKSON FAIR, ETC., ET AL,
APPELLEES

VOLUME II

Appeal from the United States District Court 
for the Southern District of Mississippi, 

Jackson Division •



I N D E X

Volume II - Meredith Case

Page No.

Notice 157

Motion of Robert B. E llis, Registrar of the 158
University of Mississippi to Vacate Plaintiff's 
Notice of Taking This Defendant's Deposition,
And The Taking Thereof

Notice of Taking Deposition on Oral Examination 161

Notice of Motion 162

Motion of Robert B. Ellis, Registrar of The 163
University of Mississippi to Vacate Plaintiff's 
Notice of Taking This Defendant's Deposition,
And The Taking Thereof

Counter-Affidavit 165

Motion For Entry of Order Nunc Pro Tunc 167

Notice of Motion 171

Order 173

Notice of Taking Deposition on Oral Examination 174

Order 176

Order Sustaining Defendants' Motions to Vacate 179
Plaintiffs' Notices of The Taking and The 
Taking of Defendant Ellis' Deposition

Court's Ruling Upon Motion to Require Defendants 181
to Produce Certain Records and Upon Notice to 
Take The Deposition of Robert B. Ellis, Registrar 
of University of Mississippi

Notice and Motion 206

Notice and Motion to Quash or Modify 208



Page
No.

Notice and Motion to Quash or Modify 209

Opinion of The Court 210

Order 221

Notice of Appeal 221
Certificate of Deposit for Checking Account 222

Plaintiff's Designation of Contents of Record on Appeal 223

Order 225

Transcript of Testimony Taken on the Hearing on 227
Motion for Preliminary Injunction

Opinion of Court of Appeals 228

Judgment 246

Motion to Quash Subpoena Duces Tecum 247
Notice of Motion 249

Motion to Quash Subpoena Duces Tecum 249
Notice of Motion 251

Motion to Quash Subpoenas 252
Notice of Motion 253

Motion to Quash Subpoena Duces Tecum 254
Notice of Motion 255

Notice 256

Motion 256

Volume H



VOLUME II 157

NOTICE
(Title Omitted - Filed July 24, 1961)

TO:
R. JESS BROW, 1105|- WASHINGTON STREET, VICKSBURG, MISS­
ISSIPPI
CONSTANCE BAKER MOTLEY, 10 COLUMBUS CIRCLE, NEW YORK 19,
NEW YORK

You and each of you as you have designated your­
selves as attorneys for James Howard Meredith will take 
notice that the undersigned will bring the following motion 
of the defendant, Robert B. Ellis, on for hearing before the 
Court in the courtroom in the Post Office Building in the 
City of Meridian, Mississippi, at 1:00 o ’clock P. M. on 
Thursday, July 27, 19&1, or as soon thereafter as counsel 
may be heard.

This the 24th day of July, 1961

JOE T. PATTERSON, ATTORNEY GENERAL 
OF THE STATE OF MISSISSIPPI
PETER M. STOCKETT, JR. AND CHARLES 
CLARK
SPECIAL ASSISTANT ATTORNEYS GENERAL 
OF THE STATE OF MISSISSIPPI
s p e c:
OF T
EDWARD L. CATES AND DUGAS SHANDS 
ASSISTANT ATTORNEYS GENERAL OF THE 
STATE OF MISSISSIPPI

Dugas Shands
SHANDS," Assistant Attorney

General of the State of Miss­
issippi

* * * * * * *



158

MOTION OF ROBERT B. ELLIS, REGISTRAR OF THE UNIVERSITY 
OF MISSISSIPPI TO VACATE PLAINTIFF'S NOTICE OF TAKING 
THIS DEFENDANT1S REPOSITION, AND THE TAKING THEREOF.

(Title Omitted - Filed July 24, 1961)

Comes now one of the defendants in this cause, Robert
B. Ellis, Registrar of the University of Mississippi, and 
without waiving any right, privilege or Immunity which he has 
or may have in this cause and upon the face of the record in 
this cause and the matters herein set out, moves the Court 
to vacate and set aside plaintiff's notice and the taking of 
this defendant's deposition under plaintiff's notice dated 
June 22 or July 12, 1961, of talcing this defendant's 
deposition,and for grounds thereof says:

1. This action is now in the process of bring tried 
by this Court upon plaintiff's motion for a temporary in­
junction. On June 12, 1961, plaintiff elected to prosecute 
his motion for a temporary injunction by producing oral 
testimony thereon. Plaintiff had subpoenaed said Ellis as 
a witness in such prosecution as shown by the subpoena it­
self and called and placed him on the stand under oath as 
an adverse witness and proceeded to examine him. Upon certain 
objections being made by the defendants, which were sustained 
by the Court, plaintiff through his counsel withdrew the said 
Ellis from the stand and placed thereon the plaintiff Meredith 
and said counsel conducted her direct examination of him, all 
as shown by said record. Dugas Shands, one of the attorneys 
for defendant proceeded to cross-examine plaintiff, and such 
cross-examination has not been completed and the said Meredith



159

is still, proceeding-wise, on the stand in the course of 
said cross-examination. Under the circumstances reflected 
by the record, the said hearing was recessed.

2. On or about June 29, 1961, plaintiff filed 
another motion for a temporary injunction according to the 
contents thereof.

3. There has been no final disposition of either of 
said motions for temporary injunction, as shown by the record 
in this cause.

4. Upon the record in this cause, the taking of the 
deposition of said Ellis is neither contemplated, permitted 
or authorized by the Federal Rules of Civil Procedure, and 
to permit same would interrupt the orderly process of the 
proceedings in this cause and constitute a grave injustice, 
oppression or annoyance to said Ellis, and in fact to the 
other defendants herein.

5. The notices dated June 22 and July 12, 1961, for 
taking this defendant’s deposition are substantially the 
same except as to date and each contains the request that 
this defendant be required to produce upon the talcing of the 
deposition the records, papers and documents therein men­
tioned, many of which have been attached as Exhibits to the 
answer of this defendant heretofore filed herein, but de­
fendant further says that plaintiff has shorn no cause or
no good cause for the talcing of this defendant's deposition.

6. Defendant waives nothing in this action or this 
matter and calls the attention of the Court to one of his



160

defenses set out In his answer heretofore filed , which is 
that this is a suit against the State of Mississippi which 
is immune from suit hy plaintiff, and that this defendant 
is an agent of the State of Mississippi and enjoys the same 
immunity as the State itself under the allegations of the 
complaint herein.

7 . Defendant by reference makes said motions for 
temporary injunction and the said notices to take depositions 
of this defendant a part hereof.

8. And for other grounds to be assigned on the
hearing.

Respectfully submitted,
ROBERT B. ELLIS, REGISTRAR OF THE 
UNIVERSITY OF MISSISSIPPI
BY JOE T. PATTERSON, ATTORNEY 
GENERAL OF THE STATE OF MISSISSIPPI
PETER M. STOCKETT, JR. AND CHARLES 
CLARK, SPECIAL ASSISTANT ATTORNEYS 
GENERAL OF THE STATE OF MISSISSIPPI
EDWARD L. CATES AND DUGAS SHANDS, 
ASSISTANT ATTORNEYS GENERAL OF THE 
STATE OF MISSISSIPPI
BY /S/ Dugas Shands

duGas^ I ailds, 'a s s i s t a n t a t t o r n e y
GENERAL OF THE STATE OF 
MISSISSIPPI

(This instrument carries proper certificate of service which 
is not copied here)

* * * * * * *



l6l

NOTICE OP TAKING DEPOSITION ON ORAL EXAMINATION 
(Title Omitted - Piled July 25# 1961)

To the Honorable Dugas Shands# Assistant Attorney 
General of the State of Mississippi# one of the attorneys for 
the defendants in the above-named action:

Please take notice that the plaintiff herein will 
take in the above-entitled action# to be used as authorized 
by the Federal Rules of Civil Procedure# the deposition of 
Robert B. Ellis# Registrar of the University of Mississippi# 
whose address is the University of Mississippi.# Oxford# 
Mississippi# upon oral examination# before Mr. B. L. Pickett# 
an official Court Reporter of the firm of Pratt# Pomroy and 
Shugart, 1601 Bank of Georgia Building# Atlanta# Georgia# 
who is not of counsel or attorney for either of the parties 
to this action# nor a relative or employee of such counsel 
or attorney# nor financially interested in this cause# on 
the 28th day of July# 1961# at 10:00 o'clock in the forenoon 
of that day# at the United States Courthouse in Meridian# 
Mississippi# at which time and place you are hereby notified 
to appear and take such part in said examination as you 
may be advised and as shall be fit and proper.

Please take further notice that the above designated 
party Robert B. Ellis# Registrar of the University of 
Mississippi# is hereby required to produce upon such examin­
ation the following records# papers and documents:



162

1. The application for admission to the University 
of Mississippi of the plaintiff, James Howard Meredith, and 
all papers and writings attached thereto.

2. All correspondence between the Registrar and 
the plaintiff, James Howard Meredith.

3. All correspondence and memoranda between the 
Registrar and other officials, faculty and employees in 
regard to the plaintiff.

4. All transcripts and other written documents
received by the Registrar from Colleges previously attended
and presently attended by plaintiff.

/S/ Constance Baker______________
Constance Baker Motley 
10 Columbus Circle 
New York, New York

Attorney for Plaintiff
July 24, 1961

(This instrument carries proper certificate of service
which is not copied here)

* * * * * * *

NOTICE OF MOTION
(Title Omitted - Piled July 27, 1961)

TO R. JESS BROWN, 11051 WASHINGTON STREET, VICKSBURG, 
MISSISSIPPI, ATTORNEY OF RECORD FOR PLAINTIFF, JAMES HOWARD 
MEREDITH-
TO CONSTANCE BAKER MOTLEY, 10 COLUMBUS CIRCLE, NEW YORK 19, 
NEW YORK, ATTORNEY OF RECORD FOR PLAINTIFF, JAMES HOWARD



163

MEREDITH.
Please take notice that the undersigned will bring 

the above Motion on for hearing before this Court in the 
United States District Courtroom in Meridian, Mississippi, 
at 1:00 o ’clock P. M., Thursday, July 27, 1961, or as soon 
thereafter as Counsel can be heard.

Done this the 27th day of July, 196 1.
JOE T. PATTERSON, ATTORNEY GENERAL 
OP THE STATE OP MISSISSIPPI
PETER M. STOCKETT, JR. AND CHARLES 
CLARK, SPECIAL ASSISTANT ATTORNEYS 
GENERAL OP THE STATE OP MISSISSIPPI
EDWARD L. CATES AND DUGAS SHANDS, 
ASSISTANT ATTORNEYS GENERAL OP THE 
STATE OP MISSISSIPPI
BY/S/ Dugas Shands

DOGAS SHANDS", ASSISTANT ATTORNEY 
GENERAL OP THE STATE OF MISSISS­
IPPI, ONE OP THE ATTORNEYS OP 
RECORD FOR THE DEFENDANTS

* * * * * * *

MOTION OP ROBERT B. ELLIS, REGISTRAR 
OF THE UNIVERSITY OF MISSISSIPPI TO 
VACATE PLAINTIFF’S NOTICE OP TAKING 
THIS DEFENDANT’S DEPOSITION, AND THE 
TAKING THEREOF.___________________ ___
(Title Omitted - Filed July 27, 1961)

Comes now one of the defendants in this cause,
Robert B. Ellis, Registrar of the University of Mississippi, 
and without waiving any right, privilege or immunity which 
he has or may have in this cause and upon the face of the 
record in this cause and the matters herein set out, moves



164

the Court to vacate and set aside plaintiff’s notice and 
the taking of this defendant’s deposition under plaintiff's 
notice dated July 24, 1961, of taking this defendant’s 
deposition, and for grounds thereof says:

1. Defendant, Robert B. Ellis, adopts each and all 
of the pleas, statements and allegations of the Motion of 
Robert B. Ellis, to vacate plaintiff’s notice of talcing 
this defendant’s deposition heretofore filed in this cause 
on Monday, July 24, 1961, and noticed for hearing at 1:00 
o ’clock P. M., Thursday, July 27, 19^1.

2. And for other grounds to be assigned on the
hearing

RESPECTFULLY SUBMITTED,
ROBERT B. ELLIS, REGISTRAR OF THE 
UNIVERSITY OF MISSISSIPPI
BY JOE T. PATTERSON, ATTORNEY 
GENERAL OF THE STATE OF MISSISSIPPI
PETER M. STOCKETT, JR. AND CHARLES 
CLARK
SPECIAL ASSISTANT ATTORNEYS GENERAL 
OF THE STATE OF MISSISSIPPI
EDWARD L. CATES AND DUGAS SHANDS, 
ASSISTANT ATTORNEYS GENERAL OF THE 
STATE OF MISSISSIPPI
BY/s/ Dugas Shands_________

DUGAS SHANES, ASSISTANT ATTORNEY 
GENERAL OF THE STATE OF MISSISSIPPI

(This instrument carries proper certificate of service which
is not copied here)

* * * # *



165

COUNTER-AFFIDAVIT
(Title Omitted - Filed July 27, 1961)

STATE OF MISSISSIPPI 
COUNTY OF LAUDERDALE

This day personally appeared before me, the under- 
Authority

signed in and for the aforesaid State and
County, Dugas Shands, who, after being by me first duly sworn, 
on oath says:

1. I am one of the attorneys for all defendants in 
the above case and make this affidavit in opposition to the 
affidavit of one of the counsel for plaintiff in said action, 
which is attached to Plaintiff’s "Motion for Production
of Documents" as Exhibit A thereto:

2. I deny the statement contained in paragraph 5
of said affidavit that plaintiff was denied admission to the 
University of Mississippi because he had attended “ *** a 
non-accredited institution ***" and the further statement 
in said paragraph l! *** and because he did not have proper 
certificates from Mississippi citizens, *** " because such 
statements are patently contrary to and in conflict with 
the words and figures of the letter written by Robert B.
Ellis to the Plaintiff dated May 25, 1961.

3. As to paragraph 6 of the affidavit I do not 
believe that plaintiff has met all constitutionally required 
or permitted elligibility requirements for entrance to the 
University of Mississippi and I do not believe his 
application was rejected solely because of his race or colorj



166

I do not believe that plaintiff’3 qualifications are 
substantially similar to many persons heretofore admitted 
to the University of Mississippi! I believe that affiant 
in said affidavit has therein indulged in stating conclusions 
rather than facts.

4. As to the contents of paragraph 8 of said 
affidavit I believe that the allegations thereof are based 
upon supposition, conclusions or suspicions and I recall that 
on the hearing of plaintiff’s motion for a temporary in­
junction commenced on June 12, 1961, at Biloxi, Mississippi, 
that Plaintifff under oath finally stated that he knew of
no facts upon which he based his allegations in the complaint 
that his application had been rejected or he had been denied 
admission solely because of race except he said he had 
reference to what he called historical facts but which 
so-called "historical facts'1 I believe are beyond the 
knowledge of plaintiff and beyond his competence to state.

5. I believe that plaintiff's motion for production 
of documents and Exhibit A thereto attached goes beyond the 
proper issues in this case and the motion should be denied.

SWORN TO AND SUBSCRIBED before me this 27th day of 
July, 1961.

s  Shands

(SEAL) 'S/^Loryce E, Wharton, Clerk 
 /S/ By Esther Carter, D. C.

MY COMMISSION EXPIRES:
* * * * *



167

MOTION FOR ENTRY OF ORDER NUNC PRO TUNC 
(Title Omitted - Filed July 31, 1961)

Comes now the plaintiff, by his undersigned attorneys, 
and craves this Court for the entry of an order, nunc pro 
tunc, discontinuing the hearing of plaintiff’s first motion 
for preliminary injunction which came on for hearing on June 
12, 1961, pursuant to direction of this Court, and setting 
this cause for trial on July 10, 1961, and continuing until 
same is completed, and as grounds therefor shows the follow­
ing:

1. The complaint in this action was filed on the 
31st day of May, 1961, and requested a preliminary and 
permanent injunction enjoining the defendants, in essence, 
from refusing to admit the plaintiff to the University of 
Mississippi, solely because of his race and color.

2. With his complaint, plaintiff filed a motion 
for a preliminary injunction which was designed to secure 
his admission to the first session of the summer term which 
commenced on June 8, 1961.

3. Because of the crowded court docket in this 
Court with only one judge sitting at the time, this Court 
was unable to hear said motion until June 12, 1961, and 
directed plaintiff to serve notice of hearing said motion 
on said date on all defendants and to send a copy of said 
notice to the Attorney General of the State of Mississippi.

4. Said notices were duly served by plaintiff and 
this cause came on for hearing on July 12, 1961.



168

5. After a day of testimony by the defendant 
registrar, the plaintiff, and cross examination of the 
plaintiff, this Court concluded that said hearing could not 
be terminated in the one day which the Court had set aside 
for the hearing of said motion because of the crowded 
docket in this Court.

6. The Court thereupon stated as follows, at pp. 
106-107 of the transcript of June 12, 1961:

BY THE COURT: Well, I think what I am going to
do, Gentlemen, is this: When I set this case
for today, I thought I could conclude it in three 
or four hours at the outside, but I see now it 
is going to take two or three days to try it 
since we are going into testimony on the witness 
stand. I just normally assumed without asking 
either side that it would be heard on affidavits 
and upon the deposition, but, of course, the other 
course is being pursued, upon oral testimony, 
and it is going to take some two or three days 
at least to develop all of this testimony. In 
order to save time, since it is now 5=25 in the 
afternoon, I am going to let you proceed with the 
examination as far as you can today. Then I am 
going to be compelled to recess this case until 
some future day not too distant —  and I will 
give you that now in a moment —  and set the 
case for trial and proceed with it until It is



169

finished. I cannot finish it this week, because 
I have cases set for all the balance of this 
week, Including some criminal cases, and all 
next week, long before this case was filed, 
civil cases were set for trial and a jury summonsed 
for them. I have one case set for tomorrow where 
a vessel is tied up and has been tied up since 
1958, and I have to hear that. I recognize the 
importance of this case and I recognize the 
priority of this case, and I have given it 
priority over another pending application for 
injunction in a different type of case. It is 
just utterly impossible for one judge to hear all 
these things, and all of you know there is only 
one judge in this district, and I have advised 
you that I have a man in jail who has been there 
for some six or seven months demanding trial, 
where he has entered a plea of not guilty, and that 
is set for the 26th of June. So the nearest 
date that I can resume the trial of this case is 
going to be July 10th. I had a docket set for 
the 10th, but I will re-set that entire docket, 
resume the trial of this case on July 10th, and 
go through with it until it is finished. I am 
going to require the defendants to answer this 
lawsuit within the time prescribed by the rules, 
which is twenty days, and they ought to have



170

their answer in "before the case is resumed for trial, 
so that the issues will he definitely framed and 
we can begin the case and finish it. So I am 
going to let you proceed as far as we can go 
this afternoon with the testimony you have 
available now, and then I will require the defendants 
to answer the lawsuit and resume the trial on 
July 10 th.
7 . No order was subsequently entered by the Court 

discontinuing said hearing on motion for preliminary in­
junction and setting this case for trial on July 10, 1961.

8. A dispute has now arisen between counsel for 
plaintiff and counsel for defendants as to what the court 
intended by its action on June 12. Plaintiff contends the 
hearing on the motion was discontinued and the case set for 
trial on July 10, 196 1. Defendants contend the hearing on 
the motion for preliminary injunction was continued until 
July 10, 1961. There is, therefore, a need to clarify the 
record and to enter, now for then, the order which should 
have been entered by this Court.

therefore, plaintiff prays that the attached 
proposed order be entered by this Court nunc pro tunc 
discontinuing the hearing on plaintiff's motion for 
preliminary injunction and setting this case for trial on 
July 10, 1961.



171

/S/ Constance Baker Motley 
Constance Baker Motley 
Derrick A. Bell, Jr. 
Thurgood Marshall 
10 Columbus Circle 
New York 19, New York

R. Jess Brown
1105| Washington Street
Vicksburg, Mississippi

Attorneys for Plaintiff
* * * * * * *

IN THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI 

JACKSON DIVISION

---------------------------- — ----------- -------------------------------)JAMES HOWARD MEREDITH, on behalf of 
himself and others similarly situated, )

Plaintiff, )
CIVIL ACTION

v. ) NO. 3150
CHARLES DICKSON FAIR, President of )
the Board of Trustees of State 
Institutions of Higher learning of )
the State of Mississippi, Louisville,
Mississippi, et al., )

Defendants. )

NOTICE OF MOTION

TO: The Honorable Dugas Shands
Assistant Attorney General 
State of Mississippi

Attorney for Defendants



172

PLEASE LAKE NOTICE that the undersigned attorneys for 
plaintiff will bring on the foregoing motion for entry of 
an order nunc pro tunc before the Honorable Sidney Mize,
Judge of the United States District Court, Southern District 
Mississippi, Jackson Division, on the 4-th day of August at 
9:00 A.M. in the forenoon of that day, or as soon thereafter 
as counsel can be heard, in the United States Court House 
at Meridian, Mississippi, or wherever Judge Mize shall be 
sitting on that date.

/s/ Constance Baker Motley_____
Consience'Balcer.Motley
Derrick A. Bell, Jr.
Thurgood Marshall 
10 Columbus Circle 
New York 19, New York
R. Jess Brown
1105| Washington Street
Vicksburg, Mississippi

Attorneys for Plaintiff

(This instrument carries proper certificate of service 
which is not copied here)

* * * * * * *



173

IN THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI 

JACKSON DIVISION

JAMES HOWARD MEREDITH, on behalf of ) 
himself and others similarly situated,

Plaintiff,
CIVIL ACTIONv. ) NO. 3130

)CHARLES DICKSON FAIR, President of
the Board of Trustees of State )
Institutions of Higher Learning of
the State of Mississippi, Louisville, )
Mississippi, et al.,

Defendants.
_________________ ____________. .................... ....... )

O R D E R
The following order is entered in this cause, nunc 

pro tunc:
This cause came on to be heard on the 12th day of 

June, 1961, on motion of plaintiff for preliminary injunction, 
and after hearing oral testimony by the defendant registrar, 
the plaintiff, and cross examination of plaintiff by defend­
ants, and the Court being of the opinion that this hearing 
could not be concluded in the one day which had been set 
aside by it for this hearing, because of the crowded docket 
in this Court, and it appearing to the Court that an answer 
should be filed end the issues fully framed and a trial had 
on those issues,



17*1

It is now, ORDERED, ADJUDGED and DECREED that:
1) the hearing of the motion for preliminary in­

junction “be discontinued and the case set for full trial on 
the merits on July 10, 1961, and continued until same is 
completed, and

2) the defendants have until June 22 to file any 
preliminary motions directed to the complaint and until June 
28 to file their answer.

TJnited States District Judge ~

Dated:
* * * * * * *

NOTICE OP TAKING DEPOSITION 
ON ORAL EXAMINATION

(Title Omitted - Piled July 31, 19Sl)
TO: Honorable Dugas Shands

Assistant Attorney General 
State of Mississippi

Attorney for the Defendants
Please Take Notice that the plaintiff herein will

take in the above-entitled action, to be used as authorized
by the Federal Rules of Civil Procedure, the deposition of
Robert B. Ellis, Registrar of the University of Mississippi,
whose address is the University of Mississippi, Oxford,
Mississippi, upon oral examination, before Mr. B. L.
Pickett, and official court reporter of the firm of Pratt,
Pomroy & Shugart, 1601 Bank of Georgia Building, Atlanta,
Georgia, who is not of counsel or attorney for either of the



175

parties to this action* nor a relative or employee of such 
counsel or attorney, nor financially interested in this case, 
on the 4th day of August, 1961, at 10:00 in the forenoon 
of that day, at the United States Court House in Meridian, 
Mississippi, or at such place as the Honorable Sidney Mize 
shall be sitting on that day, at which time and place you 
are hereby notified to appear and take such part in said 
examination as you may be advised and as shall be fit and 
proper.

Please Take Further Notice that the above designated 
party, Robert B. Ellis, Registrar of the University of 
Mississippi, is hereby required to produce upon such 
examination the following records, papers and documents:

1. All correspondence, memoranda, or other writings 
between the Registrar and other officials, faculty and 
employees of the University of Mississippi in regard to the 
plaintiff1s application.

2. All transcripts and other written documents 
received by the Registrar from colleges previously attended 
and presently attended by plaintiff.

/a/ Constance Baker Motley 
Constance Baker Motley 
10 Columbus Circle 
New York 19, New York

Attorney for Plaintiff

(This Instrument carries proper certificate of service 
which is not copied here)



176

ORDER
(Title Omitted - Filed August 1, 1961)

This day this cause came on to be heard, as the 
date set by this court upon which to render its opinion 
upon Plaintiffs’ motion, as amended and heretofore filed 
herein, to require the defendants to produce, for Inspection 
and copying of certain records and documents more fully 
specified in said motion, and it appearing to the court 
that on July 27, 1961, in the Court Room in the Federal 
Building at Meridian, Mississippi, said motion of plaintiff 
was presented to the court, and the defendants’ objections 
thereto, and the court having then heard said motion and 
defendants’ objections thereto, including a counter-affidavit 
filed on behalf of defendants as part of their said objections, 
and the court having then heard argument of counsel, as 
reflected by the record in this cause, took the matter of 
the decision upon said motion under advisement, stating 
that a decision thereon would be rendered this day in the 
said Court Room at Meridian, Mississippi, as shown by the 
Record; and the parties plaintiff and defendant having 
appeared by counsel, and the court having read and considered 
said motion, and defendants’ objections thereto as shown 
by the Record in this cause, and being fully advised in the 
premises] it is considered by the court, and the court doth 
hereby order, adjudge and decree:

1. Said motion of plaintiff is sustained to the 
extent that the defendants are required to produce, and



177

deliver to the Clerk of this Court, at the office of the 
Clerk of this Court in Jackson, Mississippi, at 9 o'clock 
a.m. Monday, August 7, 1961, all applications for admission 
to the status of regular under-graduate transfer students 
for enrollment in the 1961 summer session of the University 
of Mississippi, first and second terms, except applications 
for admission to the law school, the medical school including 
the school of nursing, the graduate school; together with 
all letters, application papers, memoranda, and transcripts 
pertaining to said applications above ordered to be produced.

Said documents may be examined by the plaintiff 
either in the office of the Clerk of this Court or in the 
office of the United States Marshal in the Post Office 
Building at Jackson, Mississippi, as may be determined by 
said Clerk, in the presence of the Registrar of the 
University of Mississippi or his designated representative, 
and one United States Marshal; said examination may be made 
between the hours of 8 o'clock a.m, and 5:30 o'clock p.m. 
each day, within a reasonable time, until the plaintiff 
shall have completed his examination thereof; said documents 
shall be securely locked and preserved by the said Clerk or 
United States Marshal in the office of said Marshal at 
Jackson, Mississippi, at all times when they are not in the 
course of being examined.

The plaintiff is required to pay all reasonable 
expense of assembling these documents at University, 
Mississippi, for transportation to Jackson, Mississippi;



178

plaintiff is further required to pay the sum of $15.00 per 
day as hotel room and meal expense of the said Registrar 
of his designated representative during the entire course 
of said examination; the plaintiff is furhter required to 
pay the sum of 10 cents per mile as mileage for the trans­
portation of said documents from University, Mississippi, 
to the said place of production, and for the transportation 
of the return of said documents to the office of the Registrar 
at University, Mississippi! any of said documents so pro­
duced of which plaintiff desires to have copies made, 
shall he made in the office of the Clerk of this Court at 
Jackson, Mississippi, in the presence of the said Registrar 
or his representative, and the said Marshal.

The said costs and expenses are to be paid by 
plaintiff to the said Registrar pursuant to order of this 
court, and the rendition to this court of an expense account 
for said mileage, said expenses of assembly, and the sum of 
$15.00 per day to cover hotel and meal expense.

2. It is further ordered, adjudged and decreed by 
the court that the said motion is in all other respects, 
denied.

3. The defendants are granted an exception to that 
portion of this order requiring them to produce for said 
purposes any of instruments, and plaintiff is granted an 
exception to said order denying the requests by plaintiffs1 
motion.



179

ORDERED, ADJUDGED AND DECREED at Meridian, 
Mississippi, on this, the 1st day of August, 196 1.

/S/ S. C. Mize
IMITED STATES 'DISTRICT JUDGE

0. B. 1961 Pages 360, 361, 362

* * * * * * *

ORDER SUSTAINING DEFENDANTS» MOTIONS TO 
VACATE PLAINTIFFS' NOTICES OF THE TAKING 
AND THE TAKING OF DEFENDANT ELLIS' DEPO­
SITION______ ____________________________
(Title Omitted - Filed August 1, 1961)

This cause came on to he heard on the 27th day of 
July, 1961, in Meridian, Mississippi, on the motions of the 
defendant, Robert B. Ellis, to vacate Plaintiffs' notices 
of the talcing and the talcing of his deposition, which 
motions and objections have been heretofore filed, and it 
appearing to the court that Plaintiffs have also served, 
on July 29, 1961, a third notice of the talcing of the depo­
sition of said Defendant, Ellis, on August 4, 1961, and as 
shown by the record herein, a hearing set as noticed by 
Plaintiff in his first Motion for Temporary Injunction for 
June 12, 1961, in Biloxi, Mississippi, at which time 
plaintiffs elected to proceed by oral evidence and pursuant 
to such election, the Defendant, Ellis, was called to the 
witness stand and examined by Plaintiffs as an adverse wit­
ness, and after objections to certain questions to this 
witness were sustained, said witness was temporarily



180

withdrawn, and Plaintiffs then called the Plaintiff, Meredith,
to the stand and proceeded with their examination, which
was followed by the commencement of cross-examination of 

and which cross-examination has not been completed 
said Plaintiff by Defendants;/ as shown by the record, said
trial was recessed to and until July 10, 1961. As shown by
the record in this cause, the said trial of this cause was
again recessed until August 10, 1961, at Jackson, Mississippi.
Upon the record in this cause, the court finds that this
cause is now in the process of trial on plaintiffs’ motion
for Temporary Injunction, and in the exercise of this court's
discretion, the court finds that the Plaintiffs should not
be allowed to take the Defendant, Ellis’, deposition at
this time.

It is, therefore, ORDERED AND ADJUDGED that the 
motions of the Defendants heretofore filed in this cause to 
vacate the notices served by Plaintiffs to take and the tak­
ing of the deposition of the Defendant, Ellis, be, and the 
same are hereby, sustained, and the notice served by the 
plaintiffs to take the deposition of the said defendant,
Ellis, on August 4, 1961, served in this cause on the 29th 
day of July, 1961, and the taking of said deposition on 
said date, be, and the same are hereby, vacated.

ORDERED AND ADJUDGED this 1st day of August, 1961.

/s/ S C Mize
T O T E D  0TATES"D1SERIC'P 'JOKE

0. B. 1961, Pages 363 & 364



l8l

COURT’S RULING UPON MOTION TO REQUIRE DEPENDANTS TO 
PRODUCE CERTAIN RECORDS AND UPON NOTICE TO TAKE THE 
DEPOSITION OP ROBERT B. ELLIS, REGISTRAR OP UNIVERSITY

OP MISSISSIPPI
(Title Omitted - Piled August 4, 1961)

APPEARANCES: Mr. R. Jesse Borwn, Attorney, Vicksburg,
Miss., appearing for plaintiff;
Mr. Dugas Shands and Mr. Ed Cates, Assistant 
Attorney Generals for State of Mississippi, 
Jackson, Mississippi;
Mr. Charles Clark, Special Assistant Attorney 
General for State of Mississippi, Jackson, 
Mississippi,
appearing for defendants.

Court Reporter's Transcript of Court's oral ruling 
upon the above styled matters given at Meridian, Mississippi, 
by Hon. S. C. Mize, U. S. District Judge for the Southern 
District of Mississippi, on August 1, 1961.

____* * * * ____

BY THE COURT: This matter is before the court
now upon a motion of plaintiff to require the defendants 
to produce certain records for inspection and copying, and 
upon a notice to take the deposition of the registrar of 
the University of Mississippi, Robert B. Ellis, and objections 
thereto.

The matter came on last week for hearing and for 
argument and was fully argued and the court took it under 
advisement until today, at which time the court announced 
that its judgment would be announced in open court on this 
date. Since that time I have given great thought and study 
to the proceedings that have been heretofore had in this



182

matter, and in order to pass upon these questions intell­
igently and correctly it is necessary to have justa little 
background of the proceedings in this cause.

There was a hearing upon a motion for preliminary 
injunction on or about the 12th of June, rather, the hearing 
was commenced on the 12th of June, and the record was tran­
scribed and certified on the 30th of June. At that time 
upon the motion for a preliminary injunction, before the 
trial began the court asked if it would be upon oral 
testimony or upon depositions or upon the record and counsel 
for the plaintiff announced that she desired to introduce 
oral testimony and called to the witness stand as an adverse 
witness the defendant Ellis and started the cross-examination 
of this witness. Whereupon, objections were made by the 
defendants to certain questions because proper predicate 
had not been laid for the Introduction of letters or documents 
which were supposed to have been sent to the plaintiff. 
Thereupon, she withdrew temporarily the witness Ellis from 
the witness stand and introduced the plaintiff, Meridith, 
who testified at length] and the case not having been fin­
ished, the court recessed that hearing ■until July 10, using 
the language that the court would recess the haring in 
this trial until July 10. On July 10 the matter came on 
for further hearing before the court and because of the 
illness of Mr. Shands, who is the leading attorney for the 
defendants and an Assistant Attorney General, the case was 
again recessed for trial. There was another case pendin g



185

for hearing on August 7th by a three-judge court. So, on 
July 10th at the hearing the court asked Mrs. Motley how 
long she thought the three-judge court would last and she 
stated that she thought it would take two days, first 
saying it wuld probably take one day and then later that 
it would take probably two days. So thereupon the trial 
of this particular case, which was then in progress, having 
been recessed from time to time, was recessed until August 
10th and the court stated that due to the illness of Mr. 
Shands that he was going to pass the trial of this case 
until the 10th of August and stated that if Mr. Shands was 
not able to participate he would require other counsel 
present to proceed with it.

So the question now before the court is whether or 
not the deposition of the registrar can be taken while the 
case is on trial, and that brings forth the question of 
what is a trial.

This case was started on a motion for preliminary 
injunction and carried on upon the motion for preliminary 
injunction and at the time of the last recess the witness 
Meridith, the plaintiff, was under cross examination and 
same had not been finished. The witness Ellis was on 
stand-by as an adverse witness subject to be called by the 
plaintiff, since the application for temporary Injunction 
had commenced. So the question now is, what is a trial?,

because if this is a trial that is in process of 
being carried on, then the authorities are practicaly



m

unanimous that discovery depositions cannot be taken. So 
we turn to the law books to determine what a trial is and 
we find it is defined many, many times in "Words and Phrases" 
and it seems to be unanimously determined by those author­
ities that a fair definition of a trial might be said in 
the following language:

"A trial is an examination before a court accord­
ing to the law of the land of facts or law put in 
issue any cause for the purposes of determining 
such issues. Further, a hearing for a preliminary 
injunction is in the nature of a trial. A trial 
of disputed facts11— coming down there again to the 
definition of a trial— "means the examination before 
a competent tribunal according to the law of the land 
the facts put in issue for the purpose of determining 
such issue".
These definitions are found in "Words and Phrases", 

Vol. 42A, page 160, et seq. Also, see Pocket Edition for 
the later cases wherein it is said in one of the cases:

"A trial is the examination before a competent 
tribunal, according to the law of the land, of the 
issues between the parties in a case, whether they

be issues of law or fact, for the purpose of

determining such issues."
A further case:
"A hearing of a motion to dissolve an attachment



185

is a trial of issue of law or fact, or both, in an 
action within the meaning of that term employed in 
the statute defining a trial of a judicial examin­
ation of issues, whether of law or fact."
So that we see that we are in the progress of a 

trial to determine the issue of whether or not the plaintiff 
is entitled to a temporary injunction. That trial has not 
been completed and has been set for August 10th, so it 
would not be proper for the plaintiff to take discovery 
deposition of the registrar at this time, since the trial 
of the case is in progress and has not been concluded and 
the defendants have a very valuable right to cross-examine, 
to complete the cross examination of the plaintiff, who 
was under cross examination when the case was recessed.

So, Gentlemen, I will deny— rather, I will sustain 
the objection of the defendants to the taking of the depo­
sition of the registrar at this time and deny the plaintiff 
the right to take the deposition of the registrar for dis­
covery purposes at this particular time, but without preju­
dice to take it when the trial of the issues now before the 
court are completed.

Now, a  motion for production of documents is a diff­
erent rule and to a certain extent I think that theplaintlff 
is entitled an inspection of certain of the documents called 
for in the motion for the production of documents, but not 
all of the documents which he calls for in his motion for 
production, because I think most of them would be immaterial



186

and irrelavent to the issues that are in the present case.
The plaintiff filed its law suit for a preliminary 

injunction upon th theory that he was a transfer student 
from the Jackson school and sought admission as a transfer 
student to the under-graduate classes of the University of 
Mississippi at Oxford. So that I think that it would he 
burdensome, overly burdensome, to produce all of the records 
that are called for] but, I think the defendant will be—  

should be required— and I will enter an order— to produce 
for inspection applications for the summer session, that is, 
June and July of 1961, of all regular undergraduate students 
from freshman to senior classes, inclusive] that is to say, 
all the applications for the freshman class, for the sopho­
more class, junior class and the senior class, of those 
students who have applied for admission as transfer students 
to the university at Oxford. This does not include, of 
course, the law students or medical students or the 
extension students of the University, but those documents 
I have heretofore enumerated at the University at Oxford, 
Mississippi.

Also, the defendant shall produce all letters accom­
panying the application and letter of admission or denial, 
or other letters pertaining to those particular applications. 
The production of these documents, however, is conditioned 
upon the plaintiff paying some of the expense, because it 
is burdensome and it is a little doubtful whether or not 
good cause has been shown for the production of these,



187

tut I am ruling that in favor of the plaintiff, that he 
is entitled to receive them, hut hut there will he some 
expense to the production of them because I am going to 
require them to he produced in Jackson, Mississippi.
Jackson is where this cause of action is pending and if 
these records should become relavent, or if the be relavent, 
they they will be present there for convenience at Jackson, 
Mississippi. So, I will require the defendants to produce 
them at Jackson at the office of the Clerk of the U. S.
Court, where the clerk will be requested, and she can do it, 
to furnish a room where the documents can be produced and 
that the inspection or copying or photographing shall be 
made and done in the presence of the deputy U. S. Marshal 
and of a representative of the University of Mississippi, 
if a representative of the university desires to be present. 
The inspection shall be made within reasonable hours, between 
eight o ’clock in the morning and five-thirty in the after­
noon. The marshal will then lock all of the records up in 
the vault of the clerk's office, or the vault of the U. S. 
Marshal, whichever is most convenient to the deputy marshal. 
The expense that the plaintiff will be required to incur 
will be mileage at ten cents per mile from Oxford, Miss­
issippi, to Jackson, Mississippi, for transportation of 
the recordsi and shall be required to pay the subsistance of 
the registrar or his representative during the period the 
inspection is carried on and until the inspection is com­
pleted by the plaintiff or his representative. Tie sub­



188

sistence will be fixed at $ 15.00 per day for the days 
actually used. I think it is absolutely necessary because 
of the importance of this case that each party have protec­
tion of these documents and I would not want anything to 
arise where one could accuse the other, if such could pos­
sibly happen— and it could possibly happen. I don't think 
probably but it could— and in that way I am talcing all these 
precautions to preserve these records.

I think it reasonable that the plaintiff be required 
to pay these expenses, as well as a reasonable expense, if 
any be incurred, in the assembling of these documents, 

because I would assume that it will take some little while 
to segregate and pick out all of these documents, together 
with all the correspondence, so forth, pertaining to same.
The expense, if any is actually incurred in the segregating 
of them, then a reasonable amount will be charged against 
the plaintiff for that expense, the amount to be determined 
by the court after it is incurred, if itis incurred.

Today is Tuesday. I will assume that those docu­
ments can be assembled and produced in the clerk's office 
in Jackson, Mississippi, by Monday of next week, could 
they not, Mr. Shands? Do you happen to know.
MR. SHAKES: Your Honor, I could not answer that question
at the moment. I would have to discuss that with Mir. Ellis, 
who is here.

THE COURT: I believe, then, in order to move on, that
I will require them to be produced there by nine o'clock,



189

Monday, August 7th, and if you can produce them earlier, 
then I will require that to he done, as I don't know how 
many records there are, or how long it would take to seg­
regate them.
MR. SHANDS: Your Honor, In the event that it is reason­
ably and humanly impossible to do it by the 7th, may we 
report to the plaintiff and to the court?

THE COURT: Well, I will require this: that you pro­
duce as many as you can by August 7th, and if you can't 
produce them all you can report to the court and I probably 
would extend the time if it is absolutely essential.
MR. BROWN: I understood the trial is to start again
on the 10th of August and—
THE COURT: That is the question I am going to rule on
in a few minutes. I received a document here from Mrs.
Motley this morning, rather yesterday afternoon, while I 
was in the middle of the trial of a case and I didn't have 
an opportunity to read it until this morning. I see it 
is an application for the entry of some orders nunc pro tunc 
and she has set It forhearlng for August 4th before me here 
in Meridian. I will not be here on August 4th and cannot 
hear it on August 4th, so I am going to make my comments on 
it at this time. She calls attention to the fact that 
orders which she says ought to have been entered heretofore 
were not entered. Among those was an order extending the 
time of the defendants in which to answer. Upon that an 
order was entered granting the time, not entirely for the



190

amount asked for, but extending the time in which to 
answer, and they have answered.

So, upon the other matters she brings to my attention 
I do not think orders are necessary because the record 
speaks for itself. She insists that the motion for a pre­
liminary injunction was discontinued, but the record does 
not bear that out because in each Instance I have recessed 
the hearing upon the motion for a preliminary injunction 
and at all times when the plaintiff was still under cross- 
examination. So I think the defendants are entitled to 
complete the plaintiff’s cross-examination and it is my 
judgment now that the hearing on August 10th was the one 
upon the application for a temporary injunction, even though 
the time of entry has passed, yet I think the plaintiff had 
the right to continue his hearing upon the application for 
temporary injunction and determine the question of facts 
and law whether or not he was entitled to a temporary 
injunction. So, the matter is still pending upon a motion 
for a temporary injunction for entrance into the university 
at the June term and at the July term and the question as 
sought is to a determination of that particular question.
So, that is my present understanding, but I can hear further 
from her,since she isn’t here this morning, in Jackson on 
August 7th, or as soon thereafter as that three-judge court, 
which is set for the 7th, is determined. Mrs. Motley is of 
counsel in that case and as soon as that case is determined 
then I will take up this case and determine what is to be



191

heard and will also hear her at that time upon her motion 
for entry of orders nunc pro tunc, if she desires to be 
heard upon them. But, having read her motion and the tran­
script of the proceedings heretofore had, it occurs to me 
that the stenographic notes speak for themselves as to what 
was heretofore done and that an order is not necessary upon 
any matters that were pending before me. There was no motion 
of any kind pending before me at that time other than the 
motion for a preliminary injunction and the postponement of 
the case by the court of its own motion on June 12. Then 
the next motion was that of the defendants bocauso of the 
illness of Mr. Shands for a further recess of the case, 
which was granted and is shown by the record. But, neverthe­
less, I am not deciding that today because I will hear from 
her.

Anything further, Mr. Brown, that you want to 3ay?
MR. BROWN: The only thing that I didn't get straight

in my mind, that I didn’t quite understand, as I understand 
it the records are to be produced in Jackson on Monday 
August 7th between the hours of nine and five-thirty. Now, 
is there also a trial on the 7th, starting on the 7th?

THE COURT: No. The trial that will start on the 7th
is the one with the three-judge court and that, according to 
Mrs. Motley in her best judgment, would probably last two or 
three days. So the motion for a preliminary injunction that 
we have heretofore been in, and still are in, was set for the 
10th, and on the 10th Mr. Shands will be permitted to pro­



192

ceed with his cross-examination of the plaintiff in this 
Meridith case. Then Mrs. lately will he permitted to intro­
duce such evidence and to recall Mr. Ellis to the stand, as 
she had done originally.

MR. BROWN: Unless I don’t quite understand yet, on
June 12, 1961, at the time we were in Biloxi, I believe that 
is the time the court recessed, as you said just a moment ago.

THE COURT: Recessed the hearing. The record is very
clear.

MR. BROWN: And the plaintiff contends it was dis­
continued. That is not the point. The only thing I am say­
ing— that is not the point at this time— but I notice it 
said "resume trial on July 10th", which would be July 10,
1961. Now, on July 10, 1961, that was at the time in Jackson 
that it was then postponed to the 7th of August, is that 
correct?

THE COURT: Until the 10th of August.
MR. BROWN: I don’t know where I got the 7th. Well,

I ’m straight on that now. So, then if the records are 
produced on the 7th, which is on Monday, then that would 
give us at least two days prior to the hearing on the 10th, 
is that correct?

THE COURT: I believe it will give you three days,
Monday, Tuesday and Wednesday.

MR. BROWN: It is not possible to move it up any
closer to the 7th?



193

THE COURT: No, I don't see how it could he done,
I might say this: if you haven't finished with the in­
spection of them I would give you further time to examine 
them, depending upon what the circumstances were.

MR. BROWN: What I had in mind, if we could get
them earlier than possibly the 7th it would give the 
plaintiff more time in which to go into these records that 
are produced to prepare for trial, rather than on Monday, 
which would give us just two days to inspect and prepare.

THE COURT: I have given you three days. The 7th,
when I am requiring them to be produced, is on Monday.
So you would have Monday, Tuesday and Wednesday, the 9th, 
and the trial begins on the 10th, Thursday.

MR, BROWN: Thursday, I was thinking the 10th was
on Wednesday.

MR. SHANES: May I make an observation? First, for
the prupose of the record the defendants would like to 
except to the ruling of the court requiring the production 
and inspection of any documents, so that nobody will claim 
that we consented to it, and that is the reason I make that 
observation.

THE COURT: Very well. The exception will be allowed,
but I will adhere to my ruling.

MR. SHANDS: For clarification, I have talked with
Mr. Ellis and he says that he can and will have the documents 
there on the 7th. The files are voluminous, but he will 
have them there on the 7 th.



19*

THE COURT: Very well, and I might add that I think
I put in there the inspection may he made by the plaintiff 
or his representatives. He may have a representative there, 
but it will be made in the presence of the deputy U. S. 
Marshal and a representative of you personally.

MR. SHANDS; As to the assembly of those records at 
the university, if it is reasonably necessary and it will 
shorten it to that effect, do I understand the ruling of 
the court correctly that any expense, necessary expense, 
that Mr. Ellis may be put to, or any of the defendants 

put to, in the assembling of those records at Oxford would 
be a taxable item of cost?

THE COURT: Yes. I announced that I would allow
a reasonably amount if it became necessary in order to 
assemble the document and will determine what would be 
a reasonable amount after it is all over.

MR. SHANBS: The only reason I made that request for
clarification was due to the voluminous amount probably 
of the records.

THE COURT: Very well, prepare an order, Mr. Shands,
in accordance with my ruling, you and Mr. Brown, and let 
Mr. Brown have a copy of it and I will sign it.

The court might make this change. The marshal has 
just called to my attention that they have a large cell block 
in the marshal1 s office where the records can be locked up 
without moving them after they are once placed in there, and



195

there are tables in there upon which the examination may 
be made. So instead of the clerk’s office, I will at this 
time direct that they be produced at the U. S. Marshal’s 
office and the inspection be made in what is known as the 
cell block.

MR. BROWN: I'd like to make this observation so I
can be clear on this matter. Relative to the request that 
you sign certain orders—

THE COURT: That reminds me of something. Let me
make another ruling. In all other respects, other than 
hereinabove stated, the motion for the production of 
documents will be overruled, and is overruled.

Is that what you wanted to call my attention to?
MR. BROWN: Yes, sir. I believe you made the state­

ment relative to the request that Your Honor sign certain 
orders that were submitted, and I believe you stated that 
you thought the record itself spoke for itself relative to 
your decisions, is that correct?

THE COURT: That is correct.
MR. BROW: So that is final, is that correct?— with

the exc eptlon of this one motion here, I believe, you said 
that you would take up when Mrs. Motoly came in on the 7th?

THE COURT: On the 7th if she desires to be heard
upon it.

MR. BROWN: I see.



196

THE COURT: That Is the motion for entry of two or
three orders nunc pro tunc. T hough I don't think that they 
are necessary at this time* I will certainly hear her before 
I make any definite ruling upon it.

MR. SHAWLS: That causes me to arise for this point
of clarification. I may have misunderstood* but as I 
understood Jesse his inquiry of the court was^in its previous 
statement from the bench did the court say that it would 
sign the orders which have been offered by Wew York counsel".

THE COURT: I will clarify that quickly. My state­
ment was that I would not sign the orders at this time* but 
that I would hear Mrs. Motley on August 7th* or as soon 
thereafter as I could.

MR. BROWN: The plaintiff in this cause comes at
this time and requests the court to issue and order set­
ting forth in such order that a representative of the 
plaintiff be present at the time that the applications 
designated by the court to be drawn— that a representa­
tive of the plaintiff be present at the time they areknow
drawn. 0 r reason for that is that we want to/that all 
the applications designated by the court to be drawn are 
drawn; we want to be absolutely sure and certain that all 
of them have been drawn and are before us on the day des­
ignated for production and inspection.

THE COURT: The court will deny that request at this
time for the reason that the court is of the opinion that



197

since the defendants have "been ordered and directed to 
produce those records that they will comply with the order. 
If it should develop on the examination of the documents 
that plaintiff or his representatives are not satisfied 
that all have been produced as ordered by the court, 
then the motion may be renewed and the court probably 
would appoint an independent representative to examine 
the records and determine if all of them have been pro­
duced as directed by the order of the court. The court 
is of the opinion that, the order having been directed to be 
issued and to be signed as soon as presented, the officials 
will comply with the order of the court. That is the pre­
sumption, but if it should develop there is any liklihood 
any have been overlooked, then the court will order a 
reexamination of the records of the university by some 
independent representative competent to make the inspection 
to so conduct such an inspection if the testimony upon the 
hearing should be of such nature that there would be any 
inference that all had not been drawn. So at this time 
the court will deny that request.

M.R. BROWN: We got the impression that you stated 
that the applications to be produced for inspection on the 
date that you designated, that those applications would 
include all transfer students in the undergraduate school 
from the freshman year through the senior year, and I 
don't believe I heard you say, or did you say, rather, how 
far back that would date.



198

THE COURT: I do not recall if I stated how far back
it should be, but I will direct that all of those records 
with reference to the transfer students, regular students 
through the freshman and senior year, inclusive, should 
be and include all such documents that were made to the 
university for the summer term of June and July of 1961, 
that being the issue that is now before the court as to those 
students for the summer term of June and July, and I will 
confine it to that date. I think to go further back at 
this time would be an undue burden that would not be jus­
tified under the present showing. If at a later time it 
should develop that others will be material, then a new motion 
could be made for the production of other documents.

MR. BROWN: It is the plaintiff's opinion here that
we should at least go back to January 1, 1956, of these 
applications and letters pertaining thereto that you have 
designated. We'd like to go from January 1, 1956, through 
the second summer term of 1961, the current session. That 
is the position we take.

THE COURT: I will overrule that request and adhere
to my ruling that it shall be those for the summer terns 
of 1961, that is, June and July summer terms of 1961, all 
applications having reference to admissions for the sum­
mer term of 1961 of the transfer students, as outlined in 
my original opinion.

MR. BROWN: We'd like for the record to show that



199

plaintiff, as to both of the rulings, that is, the ruling 

pertaining to the request for a representative to be present, 
which I understand is presently denied, and also the request 
that it go back as far as January 1, 1956, up to the second 
summer term of 1961, we would like the record to show that 
with reference to both of those rulings the plaintiff takes 
exception to both of those rulings.

THE COURT: Let the exception be allowed and the
court will adhere to its ruling.

MR. BROWN: I believe I understood you to say that
pertaining to our motion for production of records and 
inspection of the records that you allowed certain por­
tions of them, is that correct? That is, as I recall, 
you said you would allow applications of all undergraduates 
from the freshman year through the senior year and all who 
applied as transfer students, in addition to what you have 
designated covering the summer term. In other words, you 
only allow some of what the plaintiff requested, is that 
correct?

THE COURT: That is correct. I ruled you were
entitled to have the motion partially sustained as to the 
extent I stated and overruled as to all other requests.

MR. BROWN: The plaintiff wants the record to show
they except to that, also.

THE COURT: Let the exception be noted and the
court will adhere to its ruling.



200

MR. BROWN: That is all, except plaintiff takes

exception to the ruling sustaining defendant’s objection to 
taking defendant's deposition and also plaintiff takes 
exception to all the rulings by this court contrary to 
what we have requested here today.

THE COURT: You may have such exceptions.
MR. BROWN: We want the record to show that, that

we take exception to every ruling against us.
THE COURT: You may have such an exception without

specifically further enumerating them. I allow you ex­
ception to every adverse ruling I made to you.

THE COURT: I may say for the record that I now have
before me the memorandum I had prepared before I dictated 
my ruling and I feel quite sure that I had limited it tc 
the summer session, because my memorandum shows I required 
a production for inspection of the applications for the 
summer sessions of June and July of all regular students, 
undergraduate students, from freshman to senior classes 
inclusive, who have applied for admission as transfer stud­
ents to the university at Oxford. So, I had stated that,
I am sure, into the record. It is clear now what it is 
and your exceptions are all in.

MR. BROW: We will also want the record to show we
take exception to the memorandum, together with the state­
ment you made without it.

THE COURT: Yes, you may have that exception.



201

(Court recessed until 2:00 o'clock p.m.)

(After recess)
THE COURT: Mr. Shands, have you prepared an

order on this case?
MR. SEMES: We have, Your Honor, and I have shown

it to Jesse, and I understand he was requested by New York 
counsel to call her, which he has done. We have put in the 
order as sustaining the defendant's objectionaand motion to 
vacate the defendant's notice of the taking of the deposition. 
That carries an interlineation, which is an oversight in 
the original drafting of it, and in which we put in "and which 
cross-examination has not been completed", which is the 
fact.

THE COURT: I think that is proper to go in there.
I think the record shows that I stated several times that 
the cross-examination had not been completed.

MR. SHANDS: There is one additional point of clari­
fication as to the place of inspecting the records when 
they are produced. The order provides they shall be 
produced at 9:00 o'clock a.m., Monday,August 7> 1961, at 
the clerk' s office and that they shall be inspected either 
in the clerk's office or in the marshal's office, as shall 
be determined by the clerk. I was thinking of the conven­
ience to the parties. I mentioned that to Jesse and I think 
he— , it was not exactly clear to me in our drafting of



202

the order.
THE COURT: Well, in my opinion that I dictated

this morning I first stated the clerk's office. Then I 
changed it to the U. S. Marshal’s office because I was 
thinking about the safety of the records and that the 
records be placed in the cell block of the U. S. Marshal’s 
office. But I agree with you that it would be better to 
let the records be produced in the office of the clerk and 
let the clerk determine whether it would be more convenient 
to <|11 parties to make the inspection in the clerk’s office 
or in the marshal’s office. So, I will qualify my opinion 
to that extent, that I will direct them to be delivered to 
the clerk’s office in Jackson and the clerk can confer with 
the various parties and determine where is the most conven­
ient place to conduct the examination of the records. The 
reason I first suggested the clerk's office, I happen to 
know that there is one office that is more or less the 
file room where I think that there would be ample space 
to make the examination, and likewise, there is considerable 
space in the marshal’s office. But the court will be in 
session in Jackson. The three-judge court convenes on the 
7th of August, and it might be that the marshal's office 
would not be convenient for that reason. The clerk can 
confer with the marshal and wherever she designates I will 
let the determination be made by her as to the place. Of 
course, I have already directed that the records be securely



205

kept when not being used* either in the vault of the clerk 
or in the cell block of the marshal. Those are matters 
of the clerk can work out. So* I will change my opinion 
to that extent. Is that agreeable to you?

MR. BROWN: That will be either the clerk’s office—
THE COURT: What I am doing is delegating to the

clerk to determine the place where inspection should be made 
MR. SHANDS: There is one other point* and I under­

stand Jesse has very serious objection to it. As a matter 
of clarification* it is our understanding that this suit 
is brought by the plaintiff claiming to be a resident of 
Mississippi* and he purports to bring it on behalf of a 
class similarly situated. We* of course* do not admit it 
is a class action. I was going to ask the court for 
clarification as to whether or not the applications to be 
produced be restricted to applications from those who are 
residents of Mississippi or if the court had in mind the 
applications submitted both by those who are residents 
and non-residents. It occurs to me that that that is 
the basis of the suit. Jesse seems to have some very 
serious objections to that and it wasn't clear to me in 
the opinion of the court.

THE COURT: I believe that I will hear from Mr.
Brown on that feature of it as to his objection.

MR. BROWN: 3h this particular cause there has been
particular reference to correspondence between the registrar



204

and the plaintiff., Meridith, as to which there was some 
question concerning, by inference at least, concerning 
accreditation of Jackson College where Meridith has or is 
presently attending. We particularly refer to the question 
of its membership in the Souther Association of Colleges 
and Universities— I don’t remember the exact title— but 
anyway, whether it is a member of the Southern Association, 
and there is some correspondence to the effect that Jackson 
College is not a member of that association. Now, to 
restrict it to the applications of the transfer students 
only to residents within the state would— to those residents 
of the state coming to a school within the state, which are 
possibly accredited so far as the state is concerned— would 
deny the plaintiff the right to inspect and determine students 
coming from outside of the state, from other schools, which 
may or may not be accredited. To limit us to residents 
within the state, that is the basis for the objection to 
Mr. Shands proposal at this time. It would limit us too 
much, because that is a point, too, that the plaintiff 
has had in mind in inspecting the records.

MR. SHANES: I must say in all candor that the
last Correction

registrar x&sbtiE on/May 25th did assert that the by D.B.Jor­dan, Report-
letters of recommendation, which were so-called er.
letters of recommendation, did not comply with either the 
requirements as to residence or non-residence. I think it 
Is my duty to be completely, wholly and totally candid with



205

the court on these matters. Jesse has ably presented that 
point to the court and in all candor I think: that I would 
be failing my duty to the court if I did not recognize that 
he may have a point there and the registrar did make that 
statement, so there may be a question there. In view of 
that letter he may be on sound ground.

THE COURT: I didn't pass on the question particu­
larly this morning. Ordinarily I would have probably 
restricted it to citizens of the state, because I think 
that a university of any state has the right to limit 
admissions to citizens of its own state, but in view of 
what you have stated there I believe that I will let the 
order stand as I originally dictated it to the court re­
porter this morning, and that was that the defendants should 
produce and deliver to the clerk of the court at the office 
of the clerk of the court in Jackson at 9:00 o'clock, a.m., 
August 7 , 1961, all applications for admission to the status 
of undergraduate transfer students for enrollment in the 
1961 summer session of the University of Mississippi, 
first and second terms, except, of course, applications of 
law students, so forth. So I am going to require the pro­
duction as I originally dictated it and not limit it to 
residents of the state, although the plaintiff has filed 
an application for admission as a resident citizen of the 
State of Mississippi. I think I could restrict that, but 
I believe I will let it stand as I originally dictated it



206

and overrule your request that It be restricted to residents.

COURT REPORTER * S CERTIFICATE

I hereby certify that the foregoing pages constitute a 
true and correct transcript of the proceedings had in 
this cause on August 1, 1961, before Hon. S. C. Mize,
1J. S. District Judge, consisting of the court's rulin g 
upon Motion to Require production of records and objection 
to Notice of Taking of Deposition.
This the 2nd day of August, 1961.

/S/ D. B. Jordan 
D. B. Jordan 
Official Court Reporter

* * * * * • * ■ »

NOTICE M D  MOTION
(Title Omitted - Filed August 12, 1961)

To: R. Jess Brown, 11051- Washington St., Vicksburg, Miss­
issippi
C. B. Motley, 10 Columbus Circle, New York 19* New York, 
Attorneys for Plaintiff.

Please take notice that the undersigned will bring 
the below motion on for hearing before this Court at the 
Uhited States District Court Room, in Jackson, Mississippi 
at 9 o'clock A. M. on Tuesday August 15* 1961 or as soon 
thereafter as counsel can be heard.



207

Signed:/s/ Charles Clark_______
Attorney for Defendants

Address: Box 1046, Jackson, Miss.

Defendants move this Honorable Court to quash or 
modify that certain Civil Subpoena to Produce Documents 
served on Robert B. Ellis commanding him to bring tothis 
Court at this hearing,as now recessed until the date set 
out above,a list of all undergraduate students who actually 
attended 1st and 2nd summer semesters, 1961 (presumably of 
the University of Mississippi- but not specified to be 
limited to such) and the latest issue of General Catalogue, 
University of Mississippi, on the grounds that said Subpoena 
is unreasonable in that it does not definitely and suffi­
ciently set out with requisite particularity the documents 
or things to be produced and also because the documents 
and things required to be produced are not relevant and/or 
material to any issue in this action and also are so wide 
and sweeping as to require the performance of many detailed 
and extra duties to compile which would be burdensome 
and oppressive.

Joe T. Patterson, Attorney General 
of the State of Mississippi 
Dugas Shands, Asst. Attorney 

General
/S/ Charles Clark ...
Charles Clark, Sp. Asst. Atty. Gen. 
Address: Box 1046, Jackson, Miss.



208

(This instrument carries proper certificate of service 
which is not copied here)

* * * * * * *

NOTICE AMD MOTION TO QUASH OR MODIFY 
(Title Omitted - Piled August 15, 1961)

TO: R. Jess Brown
11052 Washington Street 
Vicksburg, Mississippi 

And
C. B. Motley 
10 Columbus Circle 
New York, New York, 
ATTORNEYS FOR PLAINTIFF

Please take notice that on the 15th day of August, 
1961, at 9^00 O ’Clock A.M., at the United States District 
Courtroom in Jackson, Mississippi, the Defendants will move 
this Court to quash or modify the subpoena served on E. R. 
Jobe, Executive Secretary of the Board of Trustees of 
Institutions of Higher Learning of the State of Mississippi, 
requiring his appearance with certain records and documents, 
on the 15th day of August, 1961, at 9:00 O'clock A.M., on 
the grounds that said subpoena is unreasonable and oppressive, 
in that said subpoena is too broad and sweeping and in that 
the books and records called for are palpably irrelevant 
and immaterial and contain no evidence bearing upon the 
issues in this action.

JOE T. PATTERSON, ATTORNEY GENERAL 
OF THE STATE OF MISSISSIPPI:
DUGAS SHANDS AND EDaTARD L. CATES 

« ASSISTANT ATTORNEYS GENERAL;



209

P. M. STQCKETT AND

S CLARK, SPECIAL ASSISTANT 
ATTORNEYS GENERAL
S/ Charles Clark

Address of each: ATTORNEYS FOR DEFENDANTS
New Capitol Bldg.,
Jackson, Mississippi
(This instrument carries proper certificate of service which 
is not copied here)

C. B. Motley 
10 Columbus Circle 
New York, New York 
ATTORNEYS FOR PLAINTIFF

Please take notice that on the 15th day of August, 
1961, at 9:00 o ’clock A.M., at the United States District 
Courtroom in Jackson, Mississippi, the Defendants will move 
this Court to quash or modify the subpoena served on Robert 
Byron Ellis, Registrar of the University of Mississippi, 
requiring his appearance with certain records and documents, 
on the 15th day of August, 1961, at 9 ”-00 o'clock A.M., 
on the grounds that said subpoena is unreasonable and 
oppressive, in that it call3 for the production of papers and 
records which are palpably irrelevant and immaterial and

* * * * * * *

NOTICE AND MOTION TO QUASH 
OR MODIFY

(Title Omitted - Filed August 15, 19&1)

TO: R. Jess Brown
1105i Washington Street 
Vicksburg, Mississippi

and



210

contain no evidence bearing upon the issues in this action 
and that it calls for a compilation or selection of in­
formation from records which are entirely irrelevant and 
immaterial which constitute a burdensome and expensive 
procedure for the party subpoenaed and that the subpoena 
is too broad and sweeping.

JOE T. PATTERSON, ATTORNEY GENERAL 
OP THE STATE OP MISSISSIPPI 
HJGAS SHANES AND EEWARD L. CATES, 
ASSISTANT ATTORNEY GENERAL;
P. M. STOCKETT AND
/S/ Charles Clark
CHARLES CLARK, SPECIAL ASSISTANTS
ATTORNEYS GENERAL

ATTORNEYS FOR DEPENDANTS
Address of each:
New State Capitol Bldg.,
Jackson, Mississippi

(This instrument carries proper certificate of service which 
is not copied here.)

* * * * * * *

OPINION OF THE COURT
(Title Omitted - Piled December 13, 1961)

Plaintiff, James Howard Meredith, is a member of 
the Negro race and a citizen of Mississippi. He filed his 
complaint on behalf of himself and of other Negro students 
in the State of Mississippi similarly situated. He seeks 
a preliminary and permanent injunction enjoining the defend­
ants from refusing him admittance to the University of



211

Mississippi and for a declaratory judgment. The defendants 
in the case are members of the Board of Trustees of State 
Institutions, the Chancellor of the University of Miss- 
issippi, the Dean of the College of Liberal Arts, and the 
Registrar of the University.

The management and control of the University of 
Mississippi and all other state institutions of higher 
learning in the State of Mississippi is vested in the Board.

James Howard Meredith filed his complaint on the 
31st day of May, 1961 and alleged that he had been deprived 
of rights secured to him by the Constitution of the United 
States in violation of Title 42, U.S.C. Sec. 1983. He 
alleged that the University of Mississippi is limited by 
policy and custom to students on a segregated basis only.
The defendants answered and denied the material allegations 
of the complaint, particularly that part where he alleged 
that he was denied admittance solely because of his race. 
Plaintiff further alleged that certain rules and regulations 
of the University of Mississippi have been improperly and 
unconstitutionally applied to him and avers that he was 
not accepted as a resident undergraduate transfer student 
solely because he is a negro - This was denied by the defend­
ants.

Concurrently with the filing of the complaint 
plaintiff moved for a temporary restraining order without 
notice. This application for preliminary restraining order



212

without notice was denied by the Court on the ground that 
notice of application should have been given to the 
defendants. Concurrently with the filing of the complaint 
he also filed a motion for a preliminary injunction and 
this motion was noticed for hearing on the 12th of June,
1961 at Biloxi * Mississippi, at which time it came on for 
hearing. This motion specifically related to the summer 
session of the University of Mississippi beginning June S, 
1961. The motion was called for hearing on June 12 and 
before the beginning of any proceedings the Court inquired 
of counsel on both sides as to whether or not the motion 
was to be heard on affidavits or on oral testimony.
Attorney for the plaintiff advised the Court that she desired 
to proceed on oral testimony and the trial was thereupon 
begun upon the application for the preliminary injunction.
Not having finished the case during that day and because 
prior to this time other matters had been set for hearing 
on the following day, the Court recessed this hearing until 
July 10, 1961. On June 29, 1961 plaintiff filed another 
motion for preliminary injunction, praying that the Court 
would enjoin the defendants from refusing to admit plaintiff 
to the second summer session commencing on July IT» 1961 
solely because of his race and color. On July 10, pursuant 
to the former order of recess, the Court met and at that 
time was advised that the leading counsel for the defendants 
was seriously ill and that his physical condition prevented



213

his attendance at the hearing. The Court heard this matter 
and from the affidavits and from doctors' certificates 
determined that it would endanger the life of leading counsel 
if he were compelled to proceed. He is the first Assistant 
Attorney General of the State and has taken the leading 
part throughout all hearings and the Court determined that 
sound discretion dictated out of necessity that it should 
again recess the hearing to the next available date, which 
was the 10th of August. On that date counsel for plaintiff 
announced in open court that she would withdraw her motion 
for preliminary injunction relating to the date of June 8, 
1961 and the Court granted her leave to withdraw that 
motion and gave her permission to file a later motion, but 
a later motion was not filed. However, the one that was 
filed on June 29, 1961 was left pending and it was this 

motion that was taken up for hearing on August 10 and 
proceeded to a conclusion on August 16. It is the contention 
of plaintiff that although the July 17 session— the second 
summer session— was past, yet it was the duty of the Court 
to proceed and determine if a preliminary injunction should 
be granted for the remainder of the summer session or for 
future terms or sessions of the University of Mississippi.
No application had been filed with the authorities of the 
University of Mississippi other than the one mentioned in 
the original complaint.

In his original complaint the plaintiff alleged that



on the first day of February* 1961 the Registrar of the 
University of Mississippi received by registered mail an 
application from the plaintiff for admission to the mid­
year or 1961 spring session* which commenced on February 6* 
1961. In that application he represented himself to be a 
citizen of Mississippi* having a permanent address at 
Kosciusko* in Attalla County* Mississippi, and a mailing 
address in the City of Jackson* Hinds County* Mississippi.
In his application he stated that he applied to be classified 
as a junior in the College of Liberal Arts. The Court finds 
as a fact that he did make application by that letter and 
that in response to that request forms for the listing of 
the names of six alumni residing in the County of plaintiff's 
residence* who had known plaintiff for at least two years 
and who would certify him as a person of good* moral 
character* and would recommend him for admission to the 
University of Mississippi* but as a matter of fact these 
forms were never furnished by the plaintiff. Instead* he 
sent five certificates addressed "To Whom It May Concern1'* 
certifying that he was of good moral character* none of 
which were signed by persons who were alumni of the Uni­
versity of Mississippi. On the 4th day of February* 1961 
the Registrar telegraphed plaintiff and all other applicants 
whose applications had been received after January 25* 1961 
that the University had found it necessary to discontinue 
consideration of all applications for the Spring* 1961



215

mid-year semester received subsequent to that date. The 
facts show that this was due to an overcrowded condition 
existing in the University classrooms and dormitories, 
which had been recognized and had been under consideration 
by the University Committee on Admissions since October, 
i960 as a part of an over-all plan to upgrade the quality 
of educational opportunity afforded by the University. This 
applied to all applications made after January 25, 1961, with­
out any regard to the race or color of the applicant. The 
testimony shows without contradiction, and I find as a fact, 
that many other potential applicants who made inquiry about 
applications subsequent to February 4 were similarly treated 
and none were permitted to apply for the Spring, 1961 
mid-year semester. The testimony shows, and 1 find as a 
fact, that there was no discrimination against any student, 
and particularly the plaintiff, solely because of his race 
or color with regard to the action of the University of 
Mississippi in discontinuing consideration of applications 
for the Spring, 1961 semester after the January 25, 1961 

cut-off date.
By letter dated February 20, 1961 plaintiff responded 

to the Registrar’s cut-off telegram by requesting that his 
application be considered as an application for admission to 
the Summer, 1961 session begintog June 8. This letter, as 
well as all subsequent correspondence, was sent to the 
University by plaintiff by registered mail with return



216

receipt requested., •which is an unusual procedure. Again 
on March 26 the plaintiff wrote the Registrar admitting that 
his previous five certificates did not comply with the 
regulations of the University in that they did not recommend 
his admission to the University of Mississippi and with 
this letter he enclosed additional letters from the same 
five people which referred to his good moral character and 
also recommended him for admission to the University of 
Mississippi. On April 12, 1961 plaintiff mailed a letter 
which was prepared hy his attorneys to the defendant, Dr. 
Lewis, who is Dean of the College of Liberal Arts, which 
stated that plaintiff concluded that the Registrar had 
failed to act upon his application solely because of his 
race and color and requesting Dr. Lewis to review his case. 
In response to that letter the Registrar on May 9, 1961 sent 
plaintiff a preliminary evaluation of credits indicating a 
maximum credit allowance at the University of Mississippi 
or 48 semester hours out of a total of 90 semester hours 
offered, according to plaintiff’s transfer from Jackson 
State College. On May 15, 1961 the Committee on Admissions 
at the University of Mississippi met with eight members in 
attendance. Only two of these eight members had any 
knowledge that plaintiff had applied to the University of 
Mississippi. At this meeting no specific instructions or 
students were discussed. The Committee at that time adopted 
several regulations. The action of the Committee taken that



217

day affected the award of credit for military trainings 
acceptance of credits from institutions which are not 
members of regional accrediting associations j and also 
problems connected with school credits. The undisputed 
testimony is that the adoption of these particular 
regulations were considered in terms of the quality of 
students transferred to the University and the adoption of 
the regulations was a means of improving that quality and 
was simply a part of a continuing study and action by the 
Committee on Admissions to effect such improvement. The 
testimony is and I find as a fact that this action was not 
taken in any attempt direct or indirect, to discriminate 
against anyone solely on the ground of race or color.

Later, in a letter received by the University on 
May 16, 1961, plaintiff stated that he desired to have his 
application treated as a pending application for admission 
to the summer session beginning with the first term in 
June, 1961. Many of the credits tendered by the plaintiff 
for admission as a transfer student wore denied because 
they did not measure up to the regulations required of all 
students who applied for admission to the University.
The Jackson State College, where plaintiff was in attend­
ance, was not a member of the Southern Association of 
Colleges and Secondary Schools.

Plaintiff contends and alleges that he is a citizen 
of Attala County, Mississippi. The defendants denied this



218

and they contend that he was a non-resident of the State of 
Mississippi and not a resident citizen of this State, and 
they cross examined him at length about his various move­
ments and activities. Defendants contend that while he was 
b o m  in Mississippi, yet he changed his domicile either to 
Michigan or Indiana and that he never did move back to 
Mississippi as a citizen, but only came back as a student.
On cross examination it was shown that he was married to an 
Indiana girl and that he claimed Michigan as his residence j 
that he enlisted in the Army from the State of Michigan and 
not from the State of Mississippi. Defendants further 
brought out on cross examination that after he entered 
Jackson State College at Jackson, Mississippi, he registered 
in Hinds County, Mississippi and that when he registered 
in Hinds County, Mississippi he swore falsely that he was 
a citizen of Hinds County, Mississippi and that this was 
knowingly done for the purpose of obtaining a registration. 
He admitted that he knew he was not a citizen of Hinds 
County, but that he knew he was a citizen of Attala County, 
and finally, on cross examination, he admitted that he knew 
he was swearing falsely when he swore to the Registrar of 
Voters in Hinds County, Mississippi that he was a citizen 
of that county. He stated that he had always claimed Attala 
County as his domicile and still claims it as his domicile. 
As a result of his false swearing the record shows that he 
was registered as a voter in Jackson, Hinds County,



219

Mississippi. In determining whether he is a resident of 
Mississippi or a non-resident of Mississippi I have taken 
this evidence into consideration* along with all the other 
evidence touching on that question. The testimony shows 
without conflict that he was b o m  and reared in Kosciusko, 
Attala County, Mississippi] that he finished High School 
there and thereafter took courses in other schools and 
while he was in the service, but that during all this time 
he claimed Attala County as his domicile. The record 
further shows that while he was in the Army he made 
investments back in Attala County, having bought two farms 
there. The record further shows that in order for one 
to register as a voter in Mississippi he must be a citizen 
of the state for a period of two years and a citizen of the 
county and precinct in which he was to register for a 
ptriod of one year. It is unnecessary to detail further 
the testimony touching on this question, but I find as a 
fact from all of the testimony that he was and is now a 
citizen of Attala County, Mississippi. This holding is 
supported by the authorities of Texas v. Florida, et al 
306 U. S. 398.

There was a good deal of testimony introduced in 
the* cause, but very little conflict, and the overwhelming 
weight of the testimony is that the plaintiff was not denied 
admission because of his color ox1 race. The Registrar swore 
emphatically and unequivocably that the race of plaintiff



220

or his color had nothing in the world to do with the action 
of the Registrar in denying his application. An examination 
of the entire testimony of the Registrar shows conclusively 
that he gave no consideration whatsoever to the race or 
the color of the plaintiff when he denied the application 
for admission and the Registrar is corroborated by other 
circumstances and witnesses in the case to this effect. 
Careful consideration was given to the application and in 
the honest judgment of the Registrar he did not meet the 
requirements required of all students at the University.
This testimony is undisputed and the testimony of the Regis­
trar was not unreasonable, but on the contrary was given 
openly and fairly; and in addition to his testimony, of 
course there is the presumption of law that an official will 
perform his duties honestly.

The burden of proof, of course, is upon the plain­
tiff to prove by a preponderance of the evidence that his 
admission was denied because of his race or color and this 
the plaintiff has utterly failed to do. The action taken 
by the Registrar and the other authorities at the University 
was not based to any extent at all on his race or color 
and the plaintiff has failed to meet the burden and the 
motion for the preliminary injunction should be denied.

An order may therefore be drawn denying the motion 
for the temporary injunction and the case set for final 
hearing on its merits on January 15, 1962.



221

This the 12th day of December, 196 1.
/S/ S. C. Mize

UNITED STATES' DISTRICT JUDGE
* * * * * * *

ORDER
(Title Omitted - Piled December 14, 1961)

This cause came on for hearing on the 12th of June, 
1961, 10th of August, 1961 and the 15th day of August, 19 6 1. 
On Plaintiff’s motion for a preliminary injunction and 
after having heard the testimony and oral auguments and 
after consideration of Briefs ’, and in accordance with the 
Opinion of the Court dated December 12, 1961, the motion 
for preliminary injunction is denied and the case is set 
for trial on the merits for January 15, 1962.

(Title Omitted - Filed December 14, 1961)

Plaintiff, James Howard Meredith, on behalf of 
himself and others similarly situated, hereby appeals to the 
United States Court of Appeals for the Fifth Circuit from 
the order entered in this Cause on December 14, 1961,

0. B. 1961, Page 600

* * * * * * *

NOTICE OF APPEAL



222

denying plaintiff's motion for a preliminary injunction.
CONSTANCE BAKER MOTLEY 
DERRICK A. BELL, JR.
10 Columbus Circle 
New York 19, New York
R. JESS BROWN
1105a Washington Street
Vicksburg, Mississippi
Attorneys for Plaintiff
By /s/ R. Jess Brown

T -------------------------------------- ------------CERTIFICATE OP DEPOSIT FOR CHECKING ACCOUNT 
( Deposited
with First National Bank, Jackson. Miss.

( (lame and location of depositary)
ruHmnuT

( 12- 18-61 
(Date" seritj

23

( the sum shown opposite for credit, subject 
to check , in the disbursing account of— ,

$ 250.00
(
( Loryce E. Wharton. Clerk. U. S. District Court 
( (Name and address of officer to be credited)

( Symbol Not
( On account of—
( Registry Fund

4724

( .(Depositor will insert below his name, title, Depart­
ment or Agency concerned, and his address)

Loryce E. Wharton, Clerk 
U. S. District Court 
Southern District Of Mississippi 
Jackson, Mississippi * I )

------SPADE BElDTTQ BE M  DEPOSITARY ONLY
I certify that the above amount has been 

received for credit in the account of the ) 
Treasurer of the United States on the date 
shown, subject to adjustment for uncollect- ) 
ible items included therein.



223

First National Bank, Jackson, Miss.
( (Authorized signature) Teller J

By
( 12-18-61 /s/ S. Sullivan______  _________)

(ISte ‘or credit in Treasurer's" account') 1

DEPOSITER WILL RETAIN THIS COPY

As appears on reverse side:

Check No. 516 dated Dec. 11, 1961 
Jack H. Young, Trust Account in amount of $255.00 
($5.00 included as filing fee for Notice 
of Appeal - which is deposited on 
C/D 241- to D.0.#4643)

paid into court by Jack H. Young, 207 Redmond 
Building as cash bond in amount of $250.00 
on appeal in case:
James H. Meredith 
vs
Charles Dickson Fair et al Jackson 3130-Civil
LP 249

* * * * * * *

PLAINTIFF ’ S DESIGNATION OF CONTENTS OF RECORD ON APPEAL 
(Title Omitted - Filed December 18, 1961)

1. All pleadings (including complaint and answer).
2. All motions (including both motions for pre­

liminary injunction and all motions for production and 
inspection of documents and all motions re taking of 
depositions).

3. All orders on all motions.
4. Transcripts of all hearings (including all



224

hearings on motion for preliminary injunction and all 
hearings on all other motions).

5. All exhibits.
6. Order denying motion for preliminary injunction 

of December 14, 1961, and Opinion of December 12, 196 1.
7 . Notice of Appeal.
8. This designation.
Plaintiff intends by this designation to advise the 

defendants that the entire record is designated as the 
record on appeal.

/S/ Constance Baker Motley 
Constance Baker Motley" 
Derrick A. Bell, Jr.
10 Columbus Circle 
New York 19, New York

R. Jess Brown
1105|~ Washington Street
Vicksburg, Mississippi

Attorneys for Plaintiff

(Phis instrument carries proper certificate of service 
which is not copied here.)

* * * * * * *



225

O R D E R
(Filed December 21, 1961)

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT,
U. S. Court of Appeals""..  1 - F I L E D

NO, 1939̂  Dec. 20 1961
___________ EDWARD ¥. WADSWORTH

CLERK
JAMES H. MEREDITH, on behalf of himself 

and others similarly situated,

versus
Appellant,

CHARLES DICKSON FAIR, President of the 
Board of Trustees of the State Institu­
tions of Higher Learning, et al.,

Appellees.

Appeal from the United States District Court for the 
Southern District of Mississippi.

O R D E R : -
Pursuant to the Motion of Appellant,
IT IS ORDERED that the above entitled and numbered 

cause be assigned for hearing at New Orleans, Louisiana, on 
Tuesday, January 9, 1962, on the original papers of the 
District Court.

It is further ordered that Appellant's brief, in 
four (4) legible typed copies showing service on opposing 
counsel, be filed by December 28, 1961, and that Appellees' 
'brief in like form be filed and served by January 5» 1962 __



226

(SEAL)
A true Copy 

Test:

Clerk, U. S 
New Orleans,

0. B. 1961 P

/S/ ELBERT P. TUTTLE
ELBERT P. TUTTLE 
CHEEP JUDGE 
By Direction.

/S/ Edward ¥. Wadsworth
EDWARD W. WADSWORTH 

, Court of Appeals, Fifth Circuit 
Louisiana

DEC 20 1961
614

* * * * * * *



227

THE TRANSCRIPT OP TESTIMONY TAKEN ON THE HEARING 

ON MOTION FOR PRELIMINARY INJUNCTION WOULD NORMALLY 

APPEAR HERE, BUT BECAUSE IT IS OFFERED AS AN EXHIBIT 

TO THE TESTIMONY TAKEN ON THE HEARING OF THE CASE ON 

ITS MERITS, FOR THE CONVENIENCE OF THE COURT AND 

COUNSEL IT IS BOUND SEPARATELY AND IS PROPERLY 

IDENTIFIED.



228

IN THE UNITED STATES COURT OP APPEALS
FOR THE FIFTH CIRCUIT

NO. 1939^
JACKSON DIVISION 
CIVIL ACTION 
NO. 3130

JAMES II. MEREDITH, on "behalf of himself 
and others similarly situated,

Appellant,
v.

CHARLES DICKSON FAIR, President of the 
Board of Trustees of the State Insti­
tutions of Higher Learning, Et AL.,

Appellee.

__________________ (Filed January 13» 1962) ______ _
Appeal from the United States District Court for the 

Southern District of Mississippi * 1

( Jan 12 1962 )
Before TUTTLE, Chief Judge, RIVES, and WISDOM, Circuit Judges. 
WISDOM, Circuit Judge:

James H. Meredith is a Mississippi Negro in search
of an education. Mississippi is one of three states which
have not yet allowed a Negro citizen to seek an education
at any of its State-supported, "white" colleges and

1
universities.

After graduation from high school__ the age of
seventeen, Meredith volunteered for the United States Air 
Force. He was honorably discharged nine years later. During



229

his years in the service, he acquired thirty-four semester
credits by attending night courses at the University of
Maryland (Par Eastern Division, Tokyo), the University of
Kansas, and Washburn University. His A1 s and B's at the
University of Maryland show that he applied himself 2
diligently. In addition, over the years, Meredith attended 
numerous college level courses offered by the Armed Forces 
Institute. Jackson State College allowed him fifty-seven 
quarter hours credit for the work he had taken at the Armed 
Forces Institute. After his discharge from the Air Forces 
in the summer of i960, Meredith returned to Mississippi and 
enrolled in Jackson State College, a Negro college in Jackson. 
Throughout his years of seeking to improve himself, he 
elected to study demanding and challenging subjects indicative 
of a determined effort to obtain a solid education. Into
the early part of 196 1, Meredith applied for admission sft 
the University of Mississippi. At that time he had about 
ninety credits. When asked on the witness stand why he 
wished to transfer from Jackson State College to the 
University of Mississippi he said that he regarded Jackson 
State as " substandard".

January 26, 196 1, Meredith mailed formal applications 
for admission to the University of Mississippi. His letter 
of transmittal informed the registrar that he was a Negro; 
the forms required a statement of the applicant1 s race and 
also required him to attach a photograph. He furnished with



230

his application five certificates from residents of Attala 
County, each certifying to his good moral character. 
Meredith's letter to the registrar stated: "I will not
he able to furnish you with the names (certificates) of 
six University Alumni (as required by University regulations 
for admission) because I am a negro and all graduates of 
the school are white. Further, I do not know any graduate 
personally."

February 4, 1961, the registrar wired Meredith that 
it ’’has been found necessary to discontinue consideration 
of all applications for admission or registration for the 
second semester which were received after January 25, 1961." 
University officials stated that overcrowding at the 
University prompted its action.

February 20, 1961, Meredith wrote the registrar 
requesting that his application be considered "a continuing 
application for admission during the summer session be­
ginning June 8, 1961." He asked that the registrar advise 
him whether his transcripts from other universities had 
been received and whether he had forwarded to the registrar 
all of the information necessary to make the application 
for admission complete. In answer, the registrar wrote 
him that since the University was "unable to accept applica­
tion for admission", the ten dollars for a room deposit was 
being returned.

February 23, 1961, Meredith wrote the registrar and



251

again requested that he be considered for admission to the 
summer session. The registrar did not reply to this letter. 
March 18, Meredith wrote, requesting that his application 
"be considered a continuing one for the Summer Session and 
the Pall Session, 1961". Again he asked "whether there 
remains any further prerequisites to admission". Not having 
received a reply by March 26, he wrote the registrar, calling 
attention to the statement in the Bulletin of the University 
of Mississippi, i960 Catalog, that the registrar "will 
provide each transfer student with an evaluation of the 
credits acceptable to the University", and asking that he 
be sent a copy of the evaluation of his credits. In the 
same letter he forwarded five amended certificates from 
the same Attala County residents who signed the original 
certificates, not only attesting to his good moral character, 
but specifically _____nding his admission to the Univer­
sity.

Meredith received no answer from the registrar to 
any of these three letters. On April 12, 1961, he wrote 
the Dean of the College of Liberal Arts of the University
of Mississippi. This letter _____  the Dean "to review
the case with the registrar and to advise Meredith" what 
admission requirements, if any, (he) failed to meet, and 
to give (him) some assurance that (his) race and color are 
not the basis for (his) failure to gain admission to the 
University". This letter produced reply almost four weeks



232

later. The registrar answered May 9, 1961, stating that 
the "application had been received and will receive proper 
attention". As for Meredith’s credits, he stated that 
"under the standards of the University of Mississippi the 
maximum credit which could be allowed is forty-eight 
semester hours" of the total of ninety according to the 
transcripts. Meredith wrote on May 15 and again on May 21, 
1961, stating that he still wanted his application con­
sidered as pending.

May 25, 1961, the registrar closed his file on 
Meredith with the following letter:

"The University cannot recognize the trans­
fer of credits from the institution which you 
are now attending since it is not a member 
of the Southern Association of Colleges and 
Secondary Schools. Our policy permits the 
transfer of credits only from member institutions 
of regional associations. Furthermore, students 
may not be accepted by the University from 
those institutions whose programs are not 
recognized.

"As I am sure you realize, your application 
does not meet other requirements for admission.
Your letters of recommendation are not sufficient
f__ either a resident or nonresident applicant.
I no need for mentioning any other deficiencies."



233

May 31, 1961, Meredith filed a complaint in th__
__ited States District Court for the Southern District of
Mississippi against the Board of Trustees of the State 
Institution of Higher Learning of the State of Mississippi, 
the Chancellor of the University of Mississippi, the Dean 
of the College of Literal Arts, and the Registrar of the 
University. The Board of Trustees, appointed by the 
governor with the consent of the Mississippi senate, is 
vested, under the state constitution, with the management 
and control of all the state institutions of higher learn­
ing. The complaint is filed as a class action on behalf 
of Meredith and all other negro students similarly situated. 
It seeks to enjoin, at the University of Mississippi and 
other state institutions of higher learning, the practice of 
limiting admissions to white persons.

The particular phase of the litigation now before 
this Court is an appeal from an order of the district court 
denying Meredith's motion for a preliminary injunction 
enjoining the registrar at the University from denying 
appellant's admission solely on account of his race and 
color. The motion, which was filed with the complaint, 
asked for specific relief with regard to the summer term 
beginning June 8, 1961, but the pleadings and the hearings 
show that the plaintiff sought admission to the next 
available term, summer session or regular session. The 
hearing on the motion was set for June 12, 1961, four days



234

after commencement of the first summer term. About 3:30 
p.m. on the afternoon of the hearing the district judge 
stopped the hearing and continued the case, on the 
ground that he had set aside only one day to hear the case, 
because of his crowded docket. The case was continued 
until July 10, 196 1, at which time, according to the court, 
the entire case would be heard since, in the interim, the 
answer would have been filed. The case could not be heard 
on July 10, however, because it conflicted with the trial 
of a specialxthree-judge court case.

Since it was apparent that the first summer term 
would be over before the case would be heard, the appellant 
filed another motion urging the court to grant a preliminary 
injunction before conmencement of the second term on July 
17, 1961. The motion was fixed for hearing on July 11, 1961. 
On July 10, the chief counsel for the appellee, an assistant 
attorney general for the state, was ill. The case was 
therefore continued until August 10, 1961.

In the two months5 interim between filing of the 
complaint and the hearing August 10 the plaintiff made 
five unsuccessful attempts to take the registrar's deposition. 
The first motion was denied on the ground that the deposition 
could not be taken before the expiration of twenty days 
from the filing of the complaint. The second was denied 
because of the assistant attorney general.5s ill health.
The last three were denied on the grounds that the court



235

was "in the process of trial on plaintiff's motion for 
temporary Injunction and in the exercise of (the) court's 
discretion".

The plaintiff movedfor the production of records 
of all students admitted to the February 8, 1961, term, 
the 1961 summer term, and the September 1961 term for 
inspection by the plaintiff's counsel. This motion, filed 
on June 20, was not heard until July 27, again because 
of the assistant attorney general's ill health. On August 
1 the district judge entered an order allowing inspection 
of certain records, limiting the Inspection, however, to 
applications for admission of "regular undergraduate 
transfer students for enrollment In the 1961 summer session".

The registrar filed his answer July 19, 196 1, 
denying that any state law, policy, custom or usage limits 
admissions to the University of Mississippi to white persons 
and denying that Meredith had been refused admission solely 
because of race or color. The registrar averred that 
Meredith was denied admission because: (l) he had failed
to submit the requisite alumni certificates; (2) he was 
not seeking admission in good faith; (3) under established 
rules of the Board of Trustees no institution is required 
to accept a transfer student unless the program of the 
transferring college is acceptable to the receiving 
institution and in this case the previous program of Jackson 
State College is not acceptable to the University because



236

Jackson State College is not a member of the Southern 
Association of Colleges and Secondary Schools] and (h-) for
the reasons assigned in the registrar's letter of May 25, 
1961 to Meredith.

On August 10, 1961, the hearing was resumed.
August 11 it was continued until August 15 in order to 
allow the assistant attorney general to appear in another 
case. The hearing resumed August 15 and was concluded on 
August 16.

The district judge allowed the appellee until 
September 5, 1961, to file a brief and gave the appellant 
until September 21 in which to file a reply brief. The 
last summer session was over on August 18. The first 
semester of the 1961-62 school year began September 28, 
1961.

The district judge rendered his decision December 
12, 1961, denying the plaintiff’s motion for a preliminary 
injunction. The court set the case for trial on the merits 
on January 15, 1962.

In its opinion-which the district court treated 
as "findings of fact and conclusions of law", the court 
made these findings: (1) Meredith never presented the 
alumni certificates required for admission; (2) denial of 
Meredith’s admission in February 1961 was based on over­
crowding at the University; (3) on May 15, 1961, the 
Committee on Admissions decided, without any attempt to



237

discriminate, to raise scholastic standards by accepting 
"credits only from institutions which are numbers of a 
regional accrediting association or a recognized pro­
fessional accrediting association"; (4) Jackson State College 
was not a member of the Southern Association of Colleges and 
Secondary Schools and, therefore, many of Meredith's credits 
were not acceptable to the University. The district court 
ruled that "the overwhelming weight of the testimony is 
that the plaintiff was not denied admission because of 
his color or race".

The appellant filed his notice of appeal on 
December 14, the day the court below entered its formal 
order. December 18, appellant moved for an order advancing 
the date of the hearing of his appeal. This Court granted 
and heard the appeal January 9, 1962.

I
This case was tried below and argued here in the 

eerie atmosphere of never-never land. Counsel for appellees 
argue that there is no state policy of maintaining segregated 
institutions of higher learning and that the court can take 
no judicial notice of this plain fact known to everyone.
The appellees* chief counsel insists, for example, that
appellant's counsel should have examined the genealogical
records of all the students and alumni of the University

in evidence
and should have offered these records/in order to prove the 
University's alleged policy of restricting admissions to



238

white students.
. We take judicial notice that the state of Mississ­

ippi maintains a policy of segregation in its schools and 
5

colleges. Cf. United States v. Harpole, 5 Cir., 1959, 263 

F.2d 71, cert, denied, 361 U. S. 850.
The existence of tills policy is an important factor 

in determining the purposes and effects of statutes and act­
ions superficially innocuous. The existence of the policy 
and its effect as a guiding force, however, do not relieve 
the plaintiff of the necessity of showing in this case that 
the policy was applied to him to produce discrimination 
on the ground of race. James Meredith, like any applicant 
for admission to a university, may he denied admission on 
non-discriminatory grounds.

II
We hold that the University's requirement that each 

candidate for admission furnish alumni certificates is a 
denial of equal protection of the laws, in its application 
to negro candidates. It is a heavy burden on qualified 
negro students, because of their race. It is no burden on 
qualified white students.

The fact that there are no Negro alumni of the 
University of Mississippi, the manifest unlikelihood of 
there being more than a handfull of alumni, if any, who 
would recommend a negro for the University, the traditional 
social barriers making it -unlikely, if not impossible, for



239

a negro to approach alumni with a request for such a 
recommendation* the possibility of reprisals if alumni 
should recommend a Negro for admission* are barriers only 
to qualified negro applicants. It is significant that
the University of Mississippi adopted t h e ______ rement
of alumni certificates a few months after Brown v. Board 
of Ed tion was decided.

In Ludley v. Board of Supervisors Louisiana_____ e
University of E. D. La.* 150 P. Supp. 900* aff'd 252 F.
2d 372 (1958* cert, denied* 358 U. S. 900 (1958)* a some­
what similar requirement was invalidated. There* a statute 
required for admission to state universities a certificate 
of good moral character addressed to the particular 
university by the principal of the high school from which 
the applicant was graduated. Negro high schools were 
furnished certificates addressed only to negro colleges. 
This Court held that the purpose and effect of the statute 
was to discriminate against Negroes. More recently* in 
Hunt v. Arnold, N. D. Ga.* 1959, 172 P. Supp. 8^9 (not 
appealed)* the court held that an alumni certificate 
requirement of the University of Georgia* adopted in 1953, 
was unconstitutional. in that case the court said: "The
Court takes judicial notice of the fact that it is not 
customary for Negroes and whites to mix socially or to 
attend the same public or private educational institutions 
in the State of Georgia* and that by reason of this



presently existing social pattern, the opportunities for 
the average Negro to become personally acquainted with 
the average white person, and particularly with the alumni 
of a white educational institution, are necessarily limited.”

To the extent, therefore, that the University of 
Mississippi relied on the requirement of alumni certificates 
and recommendations, Meredith was discriminated against in 
violation of the equal protection clause of the Fourteenth 
Amendment and was unlawfully denied admission to the 
University.

Ill
That holding does not dispose of the case. The 

state of the record is such that it is Impossible to 
determine whether there were valid, lion-discriminatory 
grounds for the University's refusing Meredith's admission. 
Considering the statgjof the record and considering that 
the trial on the merits heretofore set for January 15,
1962, can be held at an early date, we feel that it would 
promote the proper disposition of the case if in declining 
to reverse the denial of the preliminary injunction we 
made the following observations for the guidance of the 
district judge presiding at the trial on the merits.

A. First, the transcript and the deposition taken 
in the presence of the trial judge show that the counsel 
for the defendants was allowed so much latitude while at the 
same time the counsel for the plaintiff was so severely



circumscribed In the examination of witnesses, introduction 
of evidence, and argument that the record contains a 
welter of irrelevancios and, at the same time, a conspicuous 
omission of evidence that should be helpful to a proper 
determination of the case.

B. The limitation of evidence to that pertaining
to the summer session of 1961 is clearly erroneous. It is
erroneous since the policy and practice of the University 

were
In admissions w^s at issue. It is erroneous because
Meredith made it plain that his application for admission
was intended as a continuing application, to the regular

to
term as well as/the summer term of the University.

C. In oral argument on appeal, counsel for both 
parties called to the attention of this Court that since the 
hearing below Jackson State College has been approved by 
the Southern Association of Colleges and Secondary Schools. 
This fact has a material bearing on the issue.

D. It is not clear from the record whether the 
University gave any effect to Meredith’s credits from the 
Universities of Maryland, Kansas, and Washburn, and the 
twelve acceptable credits from Jackson State College, 
although a letter of the Registrar seems to accept forty- 
eight credits.

E. . It is not clear from the record whether the
University’s references to Jackson State College mean that 
Meredith was rejected simply bee___ _ he had attended that



242

college or he was rejected "because the Uni________  id not
accept all of Jackson State College’s credits. (Apparent__
Jiough this too is unclear, the Univer____accepted twelve
credits Meredith submitted from Jackson State.)

A full trial on the merits is needed in order to 
clarify the muddy record now before us. Within proper legal 
bounds, the plaintiff should be afforded a fair, unfettered, 
and unharassed opportunity to prove his case. A man should 
be able to find an education by taking the broad highway.
He should not have to take by-roads through the woods 
and follow winding trails through sharp thickets, in constant 
tension because of pitfalls and traps, and, after years of 
effort, perhaps attain the threshold of his goal when he 
is past caring about it. Accordingly, the order of the 
district court denying appellant's motion for a preliminary 
injunction is AFFIRMED. The motion of the appellant that 
this Court order the district court to enter a preliminary 
injunction in time to secure the appellant's admission to 
the February 6 term is DENIED. It is suggested that the 
district judge proceed promptly with a full trial on the 
merits and that judgment be rendered promptly, expecially 
in view of the fact that a new term of the University of 
Mississippi begins February 6, 1962. The Court's mandate 
will be issued forthwith.



243

JAMES H. MEREDITH, on behalf of himself and otherssi mi 1 1 y
situated
v.
CHARLES DICKSON PAIR, President of the Board of Trustees 
of the State Institutions of Higher Learning, Et Al.
NO. 19394

FOOTNQTES
1. The state-supported colleges in South Carolina and 
Alabama are also uniracial. The University of Alabama, how­
ever, is under order to admit negroes. Lucy v. Adams,
N.D. Ala., 1955, 134 F. Supp. 235, affirmed, 228 F.2d 619, 
cert, denied, 351 U. S. 931, 350 U. S. 1 (1955).
2. 3h the 1958-59 term Meredith was given the grade 
of B in each of five subjects. In the 1959-60 tern he 
received 3 A's, 4 B !s, and 1 F.
3. The complaint invokes the jurisdiction of the court
and 28 USCA §1343(3), alleging deprivation of rights in 
violation due process and equal protection clauses
of the Fourteenth Amendment and (2) 42 USCA. §1983.
4. The University regylAt&on adopted May 15, 1961 
provides that the University will "accept credits only from 
Institutions which are members of a regional accrediting 
association or a recognized professional accrediting 
association11.

Jackson StateColloge is accredited by the Mississippi 
College Accrediting Commission and the Council on Study and



244

Accreditation of Institutions of Higher Learning. The 
College Accrediting Commission is a statutory body (Miss. 
Code, 1942, S6791.5). The registrar testified that he 
knew of his own knowledge that Jackson State College was 
accredited by that Commission.
5. Mississippi's strong policy in favor of segregation 
is reflected in its statutes. Mississippi, in addition to 
enacting a resolution of interposition, enacted a statute 
requiring all members of the executive branch of the state 
government to prevent implementation of Brown v. Board of 
Education and enforce segregation in the public schools and 
other public facilities "by any lawful, peaceful and 
constitutional means51 (Miss. Code, 1942, §4065*5) • There is 
no statute limiting admissions to the University of 
Mississippi but Mississippi State College is limited to 
white males (Miss. Code, 1942, §6694); Alcorn Agricultural 
and Mechanical College was established in 1878 for the 
education of the colored youth (Miss. Code, 1942, §6703); 
Mississippi State College for Women is also limited to 
white students (Miss. Code, 1942, §§6711 and 6714)j 
Jackson State College for Negro Teachers, now known as 
Jackson State College, is the institution of higher learn­
ing which appellant now attends (Miss. Code, 1942, §S6808-Q1, 
8809). The Board of Trustees has statutory authority to 
provide graduate and professional instruction for Negro 
youth outside the State "when such instruction is not



245

available for them in the regularly supported institutions 
of higher learning" (Miss. Code, 1942, §6726.5). Moreover, 
in 1959 the State SovereiaityCommission of Mississippi 
issued a report on the state’s Negro and white schools, 
teachers and colleges. This report states the following:

The 1958-1959 allocation of state appropriated 
funds for Senior Colleges broken down on the basis 
of the amount allocated per student, is as follows:

1. Alcorn A. & M. College— (Negro)..... $747.85
2. Mississippi Vocational— (Negro).....  725.09
5. University of Mississippi (white).... 675.89

4. Delta State College— (white)........  652.54
5. Miss. State College for Women-(white) 552.53
6. Jackson State College— (Negro) ...... 476.47
7. Mississippi State University-(white). 454.67
8. MississippiSout h e m  College— (white). 387*10

4 Race Relations Law Reporter 467 (1959). There is a state 
constitutional provision and several state statutes requir­
ing segregation in the public schools. E. g., Miss. 
Constitution, 1956, Art. 8, §207; Miss. Code, 1942, 
§§6220.5, 6328-03.

* * * * * * *



246

UNITED STATES COURT OP APPEALS 
FOR THE FIFTH CIRCUIT

October Term, 1961

No. 19,39^

D. C. Docket No. 3130 Civil - Jackson
JAMES H. MEREDITH, on behalf of himself 
and others similarly situated,

Appellant,
versus

CHARLES DICKSON FAIR, President of the 
Board of Trustees of the State Institutions 
of Higher Learning Et A1.,

Appellees.
(Piled January 15, 1962)

Appeal from the United States District Court for the 
Southern District of Mississippi.

Before Tuttle, Chief Judge, Rives and Wisdom, Circuit Judges.

J U D G M E N T
This cause came on to be heard on the transcript of 

the record from the United States District Court for the 
Southern District of Mississippi, and was argued by counsel;

ON CONSIDERATION WHEREOF, It is now here ordered 
and adjudged by this Court that the order of the said



247

District Court denying appellant's motion for a preliminary 
injunction in this cause be, and the same is hereby, affirmed; 
The motion of the appellant that this Court order the 
district court to enter a preliminary injunction in time 
to secure the appellant' s admission to the February 6 term 
is denied. It is suggested that the district judge proceed 
promptly with a full trial on the merits and that judgment 
be rendered promptly, especially in view of the fact that 
a new term of the University of Mississippi begins February 
6, 1962;

It is further ordered and adjudged that the appellant, 
James H. Meredith, be condemned to pay the costs of this 
cause in this Court for which execution may be issued out 
of the said District Court.

January 12, 1962 

A true copy
Test: EIWARD W. WADSWORTH 

Clerk, U. S. Court of Appeals 
Fifth Circuit

By/S/ Gilbert F. Ganucheau
EtepuEy

New Orleans, Louisiana Jan 12 1962 

* * * *
MOTION TO QUASH SUBPOENA DUCES TECUM 

(Title Omitted - Filed January 16, 1962)

Now come the defendants in this cause and David F. 
Snipes, and move the Court to quash the purported "Civil 
Subpoena to Produce Document or Object" purportedly served

Issued: Jan 12 1962

(SEAL)

0. B. 1962, Page 14.

* * *



2^8

upon David F. Snipes, Registrar, Mississippi State College 
for Women, Columbus, Mississippi, because said subpoena is 
Invalid, unreasonable or oppressive in that:

1. Said subpoena was purportedly served upon him 
about 9-30 A. M. On January 15, 1962, at Columbus,
Mississippi, which is more than 100 miles from the place 
whore this Court is sitting in the Post Office Building
at Jackson, Mississippi, and said documents required to 
be produced are located at Starkville, Mississippi.

2. Said subpoena was not timely issued or served 
in view of the return time thereof, 9 0 0  o ’clock A. M.
Tuesday, January 16, 1962.

5. Each and every document called for by this 
subpoena is irrelevant, inadmissible and immaterial upon 
the trial of this cause, as apparent from pleadings herein.

4. Plaintiff does not have any application pending 
for admission to Mississippi State College for Women,
Columbus, Mississippi, which is a co-educational college 
whose students consist of males and females.

Respectfully submitted,
By JOE T. PATTERSON, Attorney General 

State of Mississippi 
CHARLES CLARK AND PETE STOCKETT, 
Special Assistants Attorney General 
of the State of Mississippi 
DUGAS SHANDS AND EDWARD L. CATES, 
Assistant 3 Attorney General 
of the State of Mississippi
/S/ Shands_____________By
m a m



2^9

(This instrument carries proper certificate of Service
which is not copied here.)

* * * * * * *

NOTICE OF MOTION
(Title Omitted - Piled January 16, 1962)

TO PLAINTIFF AND HIS ATTORNEYS OP RECORD:
You are hereby notified that the movants will bring

the following motion on for hearing before this Court at
9:J0 o ’clock A.M. on Tuesday* January 16, 1962, in the
Court Room of the Post Office Building at Jackson,
Mississippi, or as soon thereafter as counsel can be heard.

DONE this January 16, 1962.
/s/ Dugas Shands______________
Dugas Shands
One of the Attorneys of Record 
for Movants

* * * * * * *

MOTION TO QUASH SUBPOENA DICES TECUM 
(Title Omitted - Filed January 16, 1962)

Now comes Robert Byron Ellis, Registrar of the 
University of Mississippi, Oxford, Mississippi, one of the 
defendants in this cause, and moves the Court to quash the 
purported "Subpoena Ticket - Duces Tecum" purportedly 
served upon him by the United States Marshal in and for 
the aforesaid district and division because said subpoena 
is invalid, unreasonable or oppressive in that:



250

1. Said "Subpoena Ticket - Duces Tecum", as shown 
by the file in this Court, was purportedly served upon him 
and no subpoena in fact has been served upon him.

2. Said subpoena was served upon him at 5:00 P. M. 
in Jackson, Mississippi, on January 15, 1962, commanding 
him to be and appear before this Court at 9 ”30 o ’clock
A. M. on the morning of January 16, 1962, and purports 
to require that he bring with him the irrelevant and 
voluminous documents therein specified.

Said subpoena was not timely issued or served, this 
cause being set for the above time at which the said Ellis 
is purportedly required to appear, 9*30 A. M. Tuesday,
January 16 , 1962.

3- All documents mentioned in said subpoena were, 
at the time of the purported service thereof, and are now 
located in Oxford, Mississippi, which is more than 100 miles 
from the place where this Court sits, the Federal Post Office 
Building in Jackson, Mississippi.

4. It is utterly and totally impossible for this 
defendant to bring said documents with him to this Court 
By the return time of said subpoena.

5. Said subpoena was issued without a prior order 
of this Court and without plaintiff having shown unto the 
Court "good cause" for the production of the documents 
therein mentioned and, therefore, same is issued In 
violation of the Federal Rules of Civil Procedure.



251

6. Said documents are very numerous and voluminous
and will take much time and effort to collect and produce, 
and much expense will be incurred if this defendant is 
required to produce any of said documents.

7. Each and every document called for by this 
subpoena is irrelevant, inadmissible and immaterial upon 
the trial of this cause.

8. Plaintiff does not have any application pending 
for admission to the University of Mississippi at any of 
the terms mentioned in this subpoena.

Respectfully submitted,
ALL DEFENDANTS
By JOE T. PATTERSON, Attorney General 

State of Mississippi 
CHARLES CLARK AND PETE STOCKETT, 
Special Assistants Attorney General 
of the State of Mississippi 
DUGAS SHANDS AND EDUARD L. CATES, 
Assistants Attorney General 
of the State of Mississippi

(This instrument carries proper certificate of Service 
which is not copied here.)

* * * * * * *

NOTICE OF MOTION
(Title Omitted - Filed January 16, 1962) 

TO PLAINTIFF AND HIS ATTORNEYS OF RECORD:

You are hereby notified that the movants will bring



252

the following motion on for hearing before this Court at 
9:J0 o ’clock A.M. on Tuesday, January 16, 1962, in the 
Court Room of the Post Office Building at Jackson, Miss­
issippi, or as soon thereafter as counsel can be heard. 

DONE This January 16, 1962.
/s/ Dugas Shandsrang

One of the Attorneys of Record 
for Movants

MOTION TO QUASH SUBPOENAS 
(Title Omitted - Piled January 16, 1962)

Now come the defendants in this cause and move the 
Court to quash any and all of the hereinafter designated 
subpoenas because same are invalid, unreasonable or oppress' 
ive in that:

1. Defendants believe that a subpoena duces tecum 
has been Issued to the Registrar of some universities and 
colleges in the State other than the University of Miss­
issippi, but of this they are not certain. In the event 
such subpoenas have been so issued then this motion to 
quash applies to them.

2. Each and every document called for by such 
subpoenas is or would be invalid, immaterial and inadmiss­
ible upon the trial of this cause as reflected by the 
Pleadings herein.



255

3. Plaintiff does not have any application pending 
for admission to any of the universities or colleges 
referred to in this motion.

Respectfully submitted,
ALL DEPENDANTS 
BY

/S/ Dugas Shands_________ _
Dugas Shands
One of the Attorneys of Record 
for Movant

(This instrument carries proper certificate of Service 
which is not copied here.)

* * * * * * *

NOTICE OF MOTION
(Title Omitted - Piled January 16, 1962)

TO: PLAINTIFF AND HIS ATTORNEYS OP RECORD:

You are hereby notified that the movants will bring
the following motion on for hearing before this Court at
9:30 o ’clock A. M. on Tuesday, January 16, 1962, in the
Court Room of the Post Office Building at Jackson,
Mississippi, or as soon thereafter as counsel can be heard.

DONE, This January 16, 1962.
/S/ Dugas Shands____________
Dugas Shands >
One of the Attorneys of Record 
for Movants

* * * * * * *



254

MOTION TO QUASH SUBPOENA DUCES TECUM 
(Title Omitted - Piled January 16, 1962)

Now come the defendants in this cause and L. D. 
Fugorson, and move the Court to quash the purported 
"Civil Subpoena to Produce Document or Object" purportedly 
served upon L. D. Fugerson, Registrar, Mississippi State 
University, Starkville, Mississippi, because said subpoena 
is invalid, unreasonable or oppressive in that:

1. Said subpoena is addressed to J. H. McLendon, 
Registrar, Mississippi State University, Starkville, 
Mississippi, and instead of being served upon the said
J . H. McLendon to whom it is addressed, it was attempted 
to be or purportedly served upon L. D. Pugerson who is 
the Registrar of said Mississippi State University.

2. J. H. McLendon was not on January 15# 1962, 
nor is he now, nor was he for some time prior to January 
15, 1962, Registrar of said University.

3- Said subpoena was purportedly served upon him 
on January 1 5, 1962, at about 11:15 M. at Starkville, 
Mississippi, and same was not timely issued or served in 
view of the return time thereof, 9-30 A. M., Tuesday, 
January 16, 1962, at Jackson, Mississippi.

4. Each and every document called for by this 
subpoena is irrelevant, inadmissible and immaterial upon 
the trial of this cause as reflected by the pleadings 
herein.



255

5. Plaintiff does not have any application pending 
for admission to Mississippi State University, Starkville, 
Mississippi, which is a co-educational college whose 
students consist of males and females.

6 . The documents referred to in said subpoena 
are located at Starkville, Mississippi, the place where 
purported service was had on the said L. D. Fugerson, and 
which place is more than 100 miles from the place where 
this Court is sitting, in Jackson, Mississippi.

Respectfully submitted,
AIL DEFENDANTS
By JOE T. PATTERSON, Attorney General 

State of Mississippi 
CHARLES CLARK AND PETE STOCKETT, 
Special Assistants Attorney General 
of the State of Mississippi 
DUGAS SHANDS AND EDJARD L. CATES, 
Assistants Attorney General 
of the State of Mississippi

By /s/ Dugas Shands____________
DUGAS SHANDS

(This instrument carries proper certificate of service
which is not copied here.)

* * * * * * *

NOTICE OF MOTION
(Titlo Omitted - Filed January 16, 1962)

TO PLAINTIFF AND HIS ATTORNEYS OF RECORD:

You are hereby notified that the movants will bring 
the following motion on for hearing before this Court at



256

9:50 o'clock A. M. on Tuesday., January 16, 1962, in the 
Court Room of the Post Office Building at Jackson, 
Mississippi, or as soon thereafter as counsel can be heard.

DONE this January 16, 1962.
/S/ Dugas S h a n d s __________

Dugas Shands
One of the Attorneys of Record 
for Movants

* * * * * * *

NOTICE
(Title Omitted - Piled January 17, 1962)

Please take notice that the undersigned will cause 
the foregoing Motion to be brought before Honorable Sidney 
Mize, United States District Judge for the Southern District 
of Mississippi at Jack3on, Mississippi at 5:00 P. M. 1? 
January, 1962 in the Federal Court Building at Jackson, 
Mississippi.

DONE this 17th day of January, 1962.

/S/ Edward L. Cates______
EDWARD L. CATES

* * * * * *

MOTION
(Title Omitted - Piled January 17, 1962)

Comes now all of the defendants in the above 
captioned matter and respectfully moves this Court to



257

postpone the hearing of the merits of the permanent 
injunction unto a reasonable date, and for cause says:

1. That the principle and leading attorney, Dugas 
Shands, who is charged with the basic responsibility in 
this law suit, has been afflicted with a heart condition 
necessitating his going to the hospital and can no longer 
take an active part in the trial of this particular phase 
of the law suit.

2. That the other attorneys charged with the 
responsibility of this law suit, Charles Clark and Edward 
L. Cates, will need a reasonable period of time in which 
to properly and adequately familiarize themselves with the 
nature of this law suit, as they have been continuously 
occupied with other matters and have not been able so to 
do prior to this time.

WHEREFORE PREMISES CONSIDERED, your defendants 
respectfully pray that the hearing on the permanent 
injunction in this matter will be postponed for a reasonable 
time until defendants’ attorneys, Charles Clark and Edward 
L. Cates, can properly and adequately aprise themselves of 
the complete nature of this law suit.

ALL DEFENDANTS
BY:



258

JOE T. PATTERSON, ATTORNEY GENERAL 
OP THE STATE OP MISSISSIPPI 
DUGAS SHANDS, ASSISTANT ATTORNEY 
GENERAL OP THE STATE OF MISSISSIPPI 
EDWARD L. CATES, ASSISTANT ATTORNEY 
GENERAL OP THE STATE OF MISSISSIPPI 
CHARLES CLARK, SPECIAL ASSISTANT 
ATTORNEY GENERAL OP THE STATE OF 
MISSISSIPPI
PETER M. STOCKETT, JR., SPECIAL 
ASSISTANT ATTORNEY GENERAL OF THE 
STATE OP MISSISSIPPI

BY: /S/ Edward L. Cates______
EDWARD L. CATES, One of the 
Attorneys of Record for all 
of the Defendants

(This instrument carries proper Certificate of Service 
which is not copied here.)

* * * * * * *