Gantt v. Clemson Agricultural College of South Carolina Appellant's Brief

    finite States (Enart of Appeals
F ourth Circuit

No. 8755

I n the

H arvey B. Gantt, a minor, by his father and next friend, 
Christopher Gantt,

Appellant,
-v.—

The Clemson A gricultural College oe S outh Carolina, 
a public body corporate; R. M. Cooper, etc., et at.,

Appellees.

A P P E A L  FR O M  T H E  U N IT E D  STA TES D IS T R IC T  COU RT 

FO R T H E  W E S T E R N  D IS T R IC T  OP S O U T H  C A R O LIN A  

A N D ER SO N  D IV ISIO N

APPELLANT’S BRIEF

Constance B aker Motley 
J ack Greenberg

10 Columbus Circle 
New York 19, New York

Matthew J. P erry 
L incoln C. J enkins, J r.

11071/2 Washington Street 
Columbia, South Carolina

D onald J ames S ampson 
W illie T. S mith, J r.

125% Falls Street 
Greenville, South Carolina

Attorneys for Appellant
D errick B ell

Of Counsel



INDEX TO BRIEF

Statement of the Case ................................................ 1

Question Presented  .....................................................  3

Statement of the Fact ......... ........................................  4

A rgum ent  :

The Denial by the Court Below of Appellant’s 
Motion for a Preliminary Injunction, on the Record 
in This Case, and the Law Applicable Thereto,
Was an Abuse of Discretion ................................ 14
A. The racial policy of Clemson College, reflected

by its adoption of the out-of-state scholarship 
program and unreasonable “completed applica­
tion” requirement, denies to appellant rights 
protected by the Fourteenth Amendment ...... 14

B. The record in this case when applied to well-
settled principles of law left no discretion in 
the court below to deny appellant’s preliminary 
injunction ............     20

Conclusion ......      23

Table oe Cases

Avery v. Georgia, 345 U. S. 559 ........................ ..........  20

Booker v. State of Tenn. Bd. of Ed., 240 F. 2d 689 
(6th Cir. 1957) cert. den. 353 U. S. 965 ........ .....  18

Brown v. Board of Education of Topeka, 347 U. S.
483 (1954) ......     22

Davis v. Schnell, 81 F. Supp. 872, 878 (S. D. Ala. 1949) 
aff’d. 336 U. S. 993 (1949)

PAGE

17



11

Eubanks v. Louisiana, 356 U. S. 584, 585 .....................  20

Farley v. Turner, 281 F. 2d 131 (1960) ..................... 20
Frazier v. Board of Trustees of Univ. of N. C., 134 

F. Supp. 589 (M. D. N. C. 1955) ....................... 18

Green v. School Board of City of Roanoke, Va., 304 
F. 2d 118 (4th Cir. 1962) ..........................................  20

Hawkins v. Board of Control of Florida, 347 U. S.
971 (1955); 350 U. S. 413 (1956); 355 U. S. 839
(1957); 162 F. Supp. 851 (N. D. Fla. 1957) .......18, 21, 22

Henry v. Greenville Airport Commission, 284 F. 2d
631 (4th Cir. 1960) ......................... ....................... 22. 23

Hernandez v. Texas, 347 U. S. 475 ................................ 20
Holmes v. Danner, 191 F. Supp. 394 (M. D. Ga,

1961) ................................................................... .18,19,22
Hunt, et al. v. Arnold, et al. (N. D. Ga, 1959), 172

F. Supp. 847, 852-853 .............................................. 18,19
Hurd v. Hodge, 334 U. S. 24 (1948) .........................  22

Lucy v. Adams (N. D. Ala. 1955), 134 F. Supp. 235, 
afPd. 228 F. 2d 619 (5th Cir. 1955), cert. den. 351
U. S. 931. See also 350 H. S. 1 (1955) ................. 18, 21, 22

Ludley v. Board of Supervisors of L.S.U., 150 F. Supp.
900 (E. D. La. 1957) aff’d. 252 F. 2d 372 (5th Cir. 
1958) cert. den. 358 U. S. 819................. ..................17,18

McCoy v. Greensboro City Board of Education, 283 
F. 2d 667 (4th Cir. 1960) reversing 179 F. Supp.
745 (M. D. N. C. 1960) ..............................................  20

McKissick v. Carmichael, 187 F. 2d 949 (4th Cir. 1951),
cert, denied 341 U. S. 951 ................ ................ ......  18

McLaurin v. Board of Regents, 339 U. S. 637 (1950) ..18, 21

PAGE



Ill

Meredith v. Fair, 199 F. Supp. 754 (S. D. Miss., 1961) 
aff’d. 298 F. 2d 696 (5tli Cir. 1962), 202 F. Supp. 224
(S. D. Miss., 1962), rev’d. — — F. 2 d ----- (5th Cir.,
June 25, 1962) ......... ..... ............................17,18,19,21,22

Missouri ex rel. Gaines v. Canada, 305 IT. S. 337 (1938) .. 16

Norris v. Alabama, 294 U. S. 587 (1935) .................... . 20

Parker v. University of Delaware, 31 Del. Ch. 381,
75 A. 2d 225 (Del. Ch. 1950) ...... ......................... 18

Reece v. Georgia, 350 U. S. 85 ...................................  20

Sipuel v. Board of Regents, 332 U. S. 631 (1948) ..... . 21
Swanson v. Univ. of Virginia, Civil Action No. 30 

(W. D. Va. 1950) (unreported) ................................ 18
Sweatt v. Painter, 339 U. S. 629 (1950) ..................... 21

Tureaud v. Board of Supervisors of L.S.U., 116 
F. Supp. 248 (E. D. La. 1953) rev’d. 207 F. 2d 807 
(5th Cir. 1953) vacated and remanded 347 U. S. 971 
(1954) on remand 225 F. 2d 434 (5th Cir. 1955) on 
rehearing 228 F. 2d 895 (5th Cir. 1956), cert. den.
351 U. S. 924 ....... .........................- .............................  18

Wilson v. Board of Supervisors of L.S.U., 92 F. Supp.
986 (E. D. La. 1950), aff’d. 340 U. S. 909 (1938) .... 18

Wilson v. City of Paducah, Ky., 100 F. Supp. 116 
(W. D. Ky. 1951) ................................................... . 18

Other A uthority

Greenberg, Race Relations and American Law (1960), 
p. 262, n. 192 ........... .... ....——........-.................—-  18

PAGE



I n the

Inttefr States CEourt nf Appeals
F ourth Circuit 

No. 8755

H arvey B. Gantt, a minor, by his father and next friend, 
C h r is t o p h e r  Gantt,

Appellant,

T he Clemson A gricultural College of S outh Carolina, 
a public body corporate; R. M. Cooper, etc., et al.,

Appellees.

A P P E A L  FR O M  T H E  U N IT E D  STA TES D IS T R IC T  COU RT 

FO R  T H E  W E S T E R N  D IS T R IC T  OF S O U T H  CA RO LIN A  

A N D ER SO N  D IV ISIO N

APPELLANT’S BRIEF

Statement of the Case

This is an appeal from an order of the United States 
District Court, Western District, South Carolina, Ander­
son Division, entered September 7, 1962, denying appel­
lant’s motion for preliminary injunction securing his admis­
sion to Clemson, a state college in South Carolina (191a).

The order was entered following a hearing on the motion 
on August 22, 1962. The President of Clemson testified 
(44a), and the appellant took the stand briefly (66a). In 
additional support of the motion, the appellees placed in 
evidence the depositions of the registrar of Clemson (Pi’s. 
Exh. 31, 118a), and the Administrative Secretary of the 
State Regional Education Board (Pi’s. Exh. 32, 163a).



2

Finally, the appellant introduced correspondence between 
himself and the registrar over a period of more than a 
year (Pi’s. Exhs. 1-24, 77a-107a), the Clemson College 
catalog requirements for admission (Pi’s. Exhs. 25-30, 108a- 
115a), and the Rules and Regulations of the State Regional 
Education Board which defines state policy with respect 
to the education of Negro college students (Pi’s. Exh. 33, 
187a).

The action was commenced on July 7, 1962 after more 
than a year’s correspondence between the appellant and 
the registrar during which the registrar never advised 
appellant that he was eligible for admission to the college 
or would be admitted subject to the fulfillment of certain 
requirements. The appellees answered the complaint on 
July 28, 1962, and admitted that the Clemson Agricultural 
College of South Carolina is a body corporate under South 
Carolina law and that the individual appellees constitute 
the Board of Trustees of the college1 (15a).

The answer admitted that Kenneth N. Vickery is the 
registrar of the college (17a), admitted the appellant’s race, 
residence and citizenship (16a), and admitted that the regis­
trar received a transcript of the appellant’s work at Iowa 
State University showing satisfactory completion of two 
years’ work toward a degree in architectural engineering 
(19a).

The answer then alleges that the college did not receive 
information requested of appellant by letter to him dated 
July 2, 1962 from the Dean of the School of Architecture 
requesting appellant to furnish a portfolio of work in archi­

1 One member of the Board had resigned. One had died but no 
successors had been appointed. The answer also stated that Mr. 
J . T. Anderson, Superintendent of Education of the State of South 
Carolina, who was made a defendant had no connection with the 
college (20a).



3

tectural design and drawing done by him at Iowa State 
University. The letter, a copy of which was attached to 
the answer as Exhibit “P” stated that this information 
was:

To assist us in the evaluation . . .  of your work in archi­
tectural design and drawing at Iowra State University

* * * * #
The more complete the portfolio is the better our eval­
uation can be (Pi’s. Exh. 20,101a).

However, the evidence on the hearing of appellant’s motion 
showed that the appellant had offered to furnish this in­
formation, but the appellees refused to accept same on the 
ground that the apjoellant had instituted this action. Suit 
was instituted by appellant’s counsel at the time the letter 
was received by the appellant. No other reason for denying 
appellant’s admission to Clemson College was alleged in 
the answer.

In denying appellant’s motion for preliminary injunc­
tion, the court below found that there are material issues 
of fact in dispute, and that appellant failed to prove that 
his application was treated differently because of his race 
(203a).

Question Presented

Whether the court below abused its discretion in deny­
ing a preliminary injunction securing the admission of the 
appellant to the Clemson College of Agriculture of South 
Carolina following a hearing on appellant’s motion for pre­
liminary injunction.



4

Statement of the Facts

Appellant is a nineteen year old Negro resident of the 
State of South Carolina (66a). He evidenced interest in 
enrolling in the Clemson Agricultural College of South 
Carolina, even as a High School Junior, and in 1959, wrote 
the College, requested a bulletin of the School of Engineer­
ing and expressed definite interest in the School of Archi­
tecture (Pi’s. Exh. 1, 77a).

1. The Out-oj-State Scholarship Program .

After graduation from high school in June 1960, (Pi’s. 
Exh. 5, 81a), appellant enrolled in Iowa State in Septem­
ber 1960, using out-of-state scholarship aid provided by the 
South Carolina Regional Education Board, a state agency 
which provides financial aid to Negro students who desire 
courses not available to them in state-supported schools in 
South Carolina (Pi’s. Exh. 6, 82a; Pi’s. Exh. 32, 167a-168a, 
174a-176a; Pi’s. Exh. 33,187a).

It is undisputed that appellant is attending Iowa State 
College with financial aid from the state even though archi­
tecture is offered at Clemson (Pi’s. Exh. 31, 129a-130a), 
because he cannot take a course in architecture at South 
Carolina State College for Negroes at Orangeburg and such 
a course is not available to Negroes at any other state in­
stitution of higher learning (Pi’s. Exh. 32,168a).

It is also undisputed that there never has been any change 
in the policy of South Carolina of providing separate but 
equal education for Negroes on the college level (Pi’s. Exh. 
31, 129a.-130a, 135a-136a; Pi’s. Exh. 32, 167a-168a; Pi’s. 
Exh. 33). As a matter of fact, admission of Negroes has 
not even been discussed by the Clemson Board of Trustees. 
And although the application of appellant has been pending



5

since January 1961, that Board has never discussed appel­
lant’s application (45a-49a).

Moreover, when the appellant applied for admission to 
Clemson both the registrar and the president of the college 
inquired of the Regional Education Board whether the ap­
pellant was receiving out-of-state scholarship aid (Pi’s. 
Exh. 31,136a-139a ; Pi’s. Exh. 32,176a-177a), and when they 
learned that he was receiving such aid, returned his appli­
cation (Pi’s. Exh. 6, 82a).

2. The “C om pleted A pplication ”  R equirem ent, 1961.

On his application for admission to the September 1961 
term at Clemson College filed in January 1961, appellant 
was required to state his race, and responded with the letter 
“N” in the blank following the word “race.” Appellant also 
indicated on his application that he was enrolled at Iowa 
State and desired to take a course in architecture at Clem­
son in September 1961 (Pi’s. Exh. 5, 81a).

In reply to the registrar’s letter of January 19, 1961 
(Pi’s. Exh. 6, 82a), returning his application because he 
was receiving out-of-state aid, appellant merely wrote Mr. 
Vickery in February 1961, returned his application and 
requested that it be processed for entry in September 1961 
(Pi’s. Exh. 7, 83a).

On February 17, 1961, the registrar answered, stating 
that the application “ . . . is being placed with the pending 
applications” (Pi’s. Exh. 8, 84a). Almost three months 
later, and in response to appellant’s letter of April 26, 1961 
inquiring as to the status of his application, the registrar 
wrote on May 9:

“In response to your letter of April 26 I beg to 
advise that as of this date no applications from any 
prospective transfer students have been processed” 
(Pi’s. Exh. 9, 85a).



6

When by May 29, 1961, appellant did not hear from the 
registrar, he wrote again inquiring as to the requirements 
for admission as a transfer student. In reply, the registrar 
wrote on June 8, 1961 for the first time informing him that 
the requirements included the following:

(1) Satisfactory scores on the College Entrance 
Examination Board tests, including the scholastic ap­
titude test and achievement tests in English composi­
tion and intermediate mathematics. If you have taken 
these examinations, you may request the College 
Board, Box 592, Princeton, New Jersey, to forward 
your scores to this office.

(2) An official transcript of your academic record 
to date at Iowa State University, including entrance 
credits.

(3) A statement from Iowa State University that 
you are entitled to an honorable discharge from that 
University, and that you are eligible to return to that 
institution next semester.

The registrar pointed out that none of this information 
had been received as of that date (Pi’s. Exh. 10, 86a). 
Appellant, of course, had not previously known of these 
requirements.

Thereafter, on June 17, 1961, appellant wrote the regis­
trar that: (1) he was arranging to take the College Entrance 
Examination Board Test, (2) he had requested an official 
transcript of his Iowa State record, and (3) had requested 
the statement of honorable discharge and eligibility for 
readmission to the Iowa school. The letter contained this 
sentence:

“Meanwhile, if there are any other requirements 
which I should meet in connection with my desire to



7

enter Clemson, I shall appreciate your so advising me” 
(Pi’s. Exh. 11, 88a).

The registrar did not respond until August 31, 1961 
when he wrote appellant that although his application had 
been pending since February 7, 1961 (the date on which 
appellant returned his application) it was then impracti­
cable for the registrar’s office to process his application in 
time for admission in September 1961 since the new students 
were expected to matriculate beginning September 8, 1961. 
This letter indicated the following with respect to the status 
of appellant’s application: 1) the College Entrance Exam­
ination Test score had been received too late to allow suffi­
cient time for the Director of Admissions to complete 
investigation of “other requirements for admission” and, 
2) the required personal interview was incomplete.

No other deficiencies with respect to appellant’s applica­
tion were noted (Pi’s. Exh. 12, 89a). Moreover, appellant 
hacl received no prior notice that his application for admis­
sion to the September 1961 term could not be considered 
after a certain date and had not been advised, prior to that 
time, of the necessity for a personal interview (59a).

Suddenly, on October 13, 1961, the registrar wrote appel­
lant as follows:

“As you were advised by my form letter dated Au­
gust 31, 1961, your incomplete application for admis­
sion to Clemson College for the semester beginning in 
September 1961 was canceled for the reasons indicated” 
(Pi’s. Exh. 13, 92a).

The letter of August 31, 1961 advised of no such can­
cellation (Pi’s. Exh. 12, 89a). The letter then proceeded 
to advise the appellant that all other pending applications 
not completed prior to the beginning of the fall semester



8

were likewise canceled. The October 13, 1961 letter further 
advised appellant that he had no “pending application” for 
admission at any future date but he was free to apply for 
admission “at the beginning of any subsequent semester” 
(Pi’s. Exh. 13, 92a). Finally, this letter advised appellant 
that he would be called for a personal interview before 
a final decision was made on his application but that the 
interview would not be scheduled until his application was 
otherwise complete. The letter concluded with this sentence, 
“The application must have been completed in time to 
permit the scheduling of the interview prior to the re­
quested entrance date” (Pi’s. Exh. 13, 92a). The interview 
has never been scheduled.

3 . The “ C om pleted A pplication”  R equirem ent, 1962.

On November 13, 1961 appellant wrote Mr. Vickery of 
his surprise to learn that his application had been can­
celed, since the letter of August 31, 1961 gave him the 
definite impression that his application was still pending, 
and requested the registrar to consider his pending appli­
cation as a continuing one or, if this were not possible, 
to send him a new application (Pi’s. Exh. 14, 94a). A new 
application was sent and returned to the registrar on 
December 6, 1961 (Pi’s. Exh. 16, 96a). Appellant requested 
that this application be considered for the next semester, 
which would have been January 1962, and, if not processed 
in time, considered for the September 1962 term (Pi’s. 
Exh. 15, 95a). Almost five months later, appellant not 
having heard from the registrar, wrote again inquiring as 
to the status of his application and again inquiring as to 
the admission requirements. The registrar replied on May 
21, 1962, forwarded a catalog under separate cover, and 
stated that:



9

“ . . . the College cannot act on any application until 
the necessary information has been submitted in full” 
(Pi’s. Exh. 17, 98a).

No deficiencies were pointed out to the applicant. On June 
13th appellant appeared in the office of the registrar for 
the purpose of being interviewed. At that time he was 
advised that he could not be interviewed because his tran­
script from Iowra State College had not then arrived for 
the 1961-62 academic year although a transcript had been 
received for the 1960-61 academic year (53a-55a). The 
appellant was not interviewed on June 13 despite the fact 
that the president testified that the interview was designed 
to determine certain “intangibles” about the applicant, such 
as, motivation (50a-51a).

On June 26, appellant wired the registrar that a tran- 
scipt of his work at Iowa State College had been forwarded 
to Clemson and requested favorable consideration of his 
application and the required interview. A reply within 
48 hours was requested (Pi’s. Exh. 18, 99a). In reply, on 
June 28, the registrar telegrammed as follows:

Betel June 26, Transcript received. Tour application 
along with all others pending completion is being 
processed in manner we advised during your visit to 
this office on June 13. You will be advised date for 
interview as soon as other details relative to your ap­
plication have been completed (Pi’s. Exh. 19, 100a).

It should be noted that despite the registrar’s continued 
reference to the necessity for an interview, the president 
testified on August 22, 1962 that it had not been deter­
mined whether an interview would be required in appel­
lant’s case (55a). This was the president’s position at that 
late date despite his own finding that he has “seen nothing



10

in his [appellant’s] file at this point that would indicate 
that he isn’t a very good student” (53a). The president 
also testified that appellant’s academic record was “unques­
tionably above average” (55a). And neither the pleadings, 
affidavits, depositions or testimony upon motion for pre­
liminary injunction have even suggested any character 
deficiency on the part of appellant.

On July 2, 1962 the Dean of the School of Architecture, 
Harlan E. McClure, wrote appellant, with a copy to the 
registrar, that appellant’s transcript from Iowa State 
University had been handed to the School of Architecture 
for analysis and evaluation, but that such evaluation was 
difficult, as in every transfer case, because of the problem 
of equating courses at one school with courses given at 
the other. To assist in this evaluation, the Dean requested 
a “portfolio” of appellant’s work in architectural design 
and drawing with an indication of the duration of the 
exercises submitted and advised appellant he might submit 
any other creative work which he cared to show, since 
the more complete the “portfolio” the better the evaluation 
would be. The letter concluded with the suggestion that 
appellant come for a conference at the time he submitted 
the information, however, the letter pointed out that, “This 
conference will have to do with the standards and pro­
cedures of the School of Architecture and will not be a 
substitute for the preacceptance interview provided by the 
College admission policies” (Pi’s. Exh. 20, 101a).

On July 13, 1962 the appellant wrote the Dean that he 
would be happy to furnish the information requested al­
though he could not furnish all the design and drawing 
done at Iowa State since a great deal of it was kept by 
the Department of Architecture; however, he would be 
happy to furnish whatever he had and any other informa­
tion required. Appellant desired to know, however, wheth­



11

er in view of the filing of a suit which coincided with the 
Dean’s letter, the Dean wished him to comply with the 
request for the review of the work at Iowa State (Pi’s. 
Exh. 22, 104a). In reply to this, appellant’s attorney re­
ceived a letter from the attorney for Clemson College 
which stated in part:

“In view of the fact that the administrative remedies 
of the College are under attack in this case, it would 
seem to us to be highly inappropriate that there be 
any further consideration of this client’s application 
while litigation is pending . . . this will explain why 
we have advised Dean McClure not to reply to the 
letter” (Pi’s. Exh. 23,106a).

Appellant’s attorney then wrote that appellant “wanted 
Dean McClure and other officials to understand his will­
ingness to submit to the requirements of the College” 
despite the fact that he had brought an action to gain 
his admission (Pi’s. Exh. 24, 107a).

The appellant has met all requirements for admission to 
Clemson College as set forth in the Clemson College Record, 
1960-61 (Pi’s. Exhs. 25-27, 108a, 111a), and in the Clemson 
College Record, 1961-62 (Pi’s. Exhs. 28-30, 112a-115a). 
The request of Dean McClure for an opportunity to evalu­
ate appellant’s architectural designs and drawings at Iowa 
State is not a stated or even implied requirement for admis­
sion. Appellant was never even advised by letter that an 
evaluation of credits at a previous school was a condition 
of admission. This suggestion was made for the first time 
in the answer filed by appellees in this action. The answer 
claimed that appellant had failed to supply a portfolio of 
his work (19a). However, the evidence shows the contrary 
(Pi’s. Exhs. 22, 23, 24, 104a-108a).



12

Moreover, tie  president testified that interviews are not 
given in every case, that the registrar reviews the record 
and determines “whether or not he [feels] there [is] some­
thing that indicate[s] an interview” (53a). Less than 
100 applicants have been subjected to such interviews for 
the September 1962 term, although as of August 22, 1962, 
600 or more applications for admission were still “pend­
ing” (59a-60a).

The Clemson College Record, 1961-62, provides as fol­
lows with respect to transfer applicants:

“The applicant must present for consideration;
(a) a statement of honorary discharge from the insti­
tution last attended,
(b) an official transcript of his record, including en­
trance credits, and
(c) an official statement that he is eligible to return 
to the institution last attended” (Pi’s. Exh. 29, 113a).

The appellant has complied with these requirements 
(Pi’s. Exh. 19a, 100a).

The Record then provides:
“College credits given by transfer are provisional 

and may be canceled at any time if the student’s work 
is unsatisfactory” (Pi’s. Exh. 29, 113a).

The Record further provides as follows:
“In order for a transfer student to be considered 

for enrollment his complete application including test 
scores, transcripts, and statement of eligibility must 
be on file in the Admissions Office at least two weeks 
prior to the date of desired matriculation” (Pi’s. Exh. 
29, 114a).

The appellant has complied with this requirement.



13

The Record also required that for admission in Septem­
ber 1962, these materials must be submitted no later than 
August 23, 1962. The appellant’s test score, transcript, 
statement of honorable discharge and statement of eligibil­
ity to return to Iowa State were all submitted prior to 
August 23, 1962. His transcript was mailed June 13, 1962 
(Pi’s. Exhs. 18, 19, 99a-100a). His test score was received 
prior to August 31, 1961 (Pi’s. Exh. 12, 90a). His applica­
tion has been pending since January 1961 (Pi’s. Exh. 6, 
82a). The appellant had never been advised, prior to filing 
suit, that his credits would have to be evaluated before ad­
mission to the College and he has never been advised, ac­
cording to the president’s testimony, that an interview would 
be required in his case (55a).



14

ARGUMENT
The Denial by the Court Below of Appellant’s Motion 

for a Preliminary Injunction, on the Record in This 
Case, and the Law Applicable Thereto, Was an Abuse of 
Discretion.

A. The racial policy of Clemson College, reflected by 
its adoption of the out-of-state scholarship program  
and unreasonable “ completed application” require­
ment, denies to appellant rights protected by the 
Fourteenth Amendment.

Appellant comes here seeking this Court’s aid after ex­
pending eighteen frustrating months in an unsuccessful ef­
fort to enter Clemson College. While appellant filed appli­
cations on three occasions he was unable to complete appli­
cation procedures to appellees’ satisfaction. The appellees 
contend that applicant’s application was treated no differ­
ently because it contained the question “Race”, and he 
responded, “N” (Pi’s. Exhs. 5, 16, 81a, 97a). However, 
appellant submits that what the state does is more enlight­
ening here than what it says.

For sixty-nine years, the State of South Carolina has 
been operating Clemson College, and in all that time, no 
Negro student has ever been admitted. Until recent deci­
sions of the United States Supreme Court, Negroes were 
admittedly excluded from Clemson. More recently, officials 
claim that race is no longer a factor in the admission of 
students (130a, 151a). However, the Board of Trustees has 
never advised the registrar or other school officials that 
the separate but equal policy has changed, and no public 
announcement has been made that the school now accepts 
students without regard to race. Perhaps most significant, 
of the five or six Negroes who have applied since 1938, not 
only have none been accepted, but like the appellant, none



15

have ever “completed their applications” (Pi’s. Exh. 31, 
127a, 131a).

A newsletter sent out by the Registrar’s Office to high 
schools in the state outlining and explaining admission 
policies set forth in the catalog (Pi’s. Exh. 31,118a), is sent 
only to white high schools (Pi’s. Exh. 31,120a). In addition, 
Rule No. 1 of the Rules and Regulations of the South Caro­
lina Regional Education Board, a state agency governing 
scholarship aid for study at out-of-state institutions pro­
vides :

“1. Scholarships may be granted to study courses which 
are not offered at South Carolina State College in 
Orangeburg, but which are offered at state-sup­
ported institutions within the State of South Caro­
lina which are not available to Negro students” 
(Pi’s. Exh. 33,187a).

In explanation of this rule, the Administrative Secretary 
of the Regional Educational Board testified that at the 
present time, South Carolina State College, a state sup­
ported school in Orangeburg is the only state supported 
college in South Carolina open to Negro students (Pi’s. 
Exh. 32,168a).

“Q. Now then, let us go to this situation. Is it not a 
fact that there are courses of study offered to white 
students in white supported institutions in South Caro­
lina that are not offered at South Carolina State Col­
lege in Orangeburg? A. That is true.

“Q. Now, does not your office furnish out of state aid 
for negro students who cannot obtain at South Carolina 
State College certain courses of study, but those same 
courses of study are offered to white students in other 
white institutions in South Carolina? A. That’s true.



16

“Q. And those are other white—State supported in­
stitutions to which we refer, is that not a fact? A. 
Yes sir” (Pi’s. Exli. 32,170a).

The out-of-state scholarship program for Negroes was 
held constitutionally void as an equal protection measure 
in 1938. Missouri ex rel. Gaines v. Canada, 305 U. S. 337 
(1938). Nevertheless, the Administrative Secretary further 
testified that she presently handles about 600 to 650 appli­
cations, approximately 370 of which are from Negroes who 
are enrolled in out of state institutions for courses not 
offered at the all-Negro South Carolina State College in 
Orangeburg (Pi’s. Exh. 32,174a). She stated that normally, 
Negro students seeking out-of-state aid write: “I cannot 
receive the course or the degree that I am seeking in South 
Carolina, it is not offered at State College” (Pi’s. Exh. 32, 
184a). Upon receipt of such requests, state officials provide 
all qualified Negro students with scholarship funds up to 
$500 per year for tuition and transportation expenses.

For two years, the appellant has received scholarship aid 
from the Regional Educational Board. When he submitted 
his first application to Clemson College in January 1961 
(Pi’s. Exh. 5, 81a), the Registrar did not inform appellant 
that he was improperly receiving out-of-state aid since he 
was eligible to take architecture courses at Clemson, rather 
he noted that appellant was receiving state aid, impliedly 
advised him to continue doing so, and returned his applica­
tion to him (Pi’s. Exh. 6, 82a).

The lengthy correspondence that ensued has been made 
a part of the record and has been reviewed in the statement 
of facts. There is no factual dispute as to any of it. Rather 
than point out each instance of appellees’ delay in respond­
ing to his inquiries, and their failure to advise him of re­
quirements, prerequisites, interviews, tests, and cut-off



17

dates in a timely manner, appellant submits that these 
dilatory proceedings are in perfect harmony with the policy 
of limiting Clemson College to white students; a policy ad­
mittedly in effect a few years ago, never officially aban­
doned, and adhered to in principle by the Registrar when 
he learned appellant was a Negro, informed the College 
President, .ascertained from the Regional Educational 
Board that appellant was receiving out-of-state aid, and 
indicated his ineligibility to enroll at Clemson by returning 
his application. The lengthy correspondence that followed, 
when considered in the realistic light of what is actually 
done in South Carolina by Negro students and state offi­
cials, clarifies rather than confuses the issues posed here. 
As the Fifth Circuit, reviewing similar facts, recently said 
in taking* judicial notice of Mississippi’s policy of segrega­
tion in its schools and colleges, “What everybody knows the
court must know.” Meredith v. Fair,----- F. 2 d ------  (5th
Cir., June 25, 1962). See also Board of Supervisors of 
Louisiana St. v. Ludley, 252 F. 2d 372, 376 (5th Cir. 1958); 
Davis v. Schnell, 81 F. Supp. 872, 878 (S. D. Ala. 1949), 
aff’d. 336 F. S. 933 (1949).

The refusal of appellees to promptly process and de­
termine appellant’s application, when as here, such failure 
is so obviously a part of a discriminatory policy is no less 
a violation of appellant’s constitutional rights than an 
outright refusal to consider his application because he is a 
Negro. Indeed, the only discernible difference between the 
response appellant’s application elicited and that received 
by Negroes who applied during separate-but-equal days 
is that while the earlier Negroes were referred to the 
Negro school at Orangeburg (Pi’s. Exh. 32, 130a), appel­
lant was referred to the integrated school in Iowa. Ap­
pellant submits that the distinction is without a constitu­
tional difference, and that the court decisions which in 
virtually every southern state except South Carolina have



18

held invalid the refusal to admit Negro students to state 
colleges are entirely applicable to appellee’s refusal here.2

2 Oklahoma 

Louisiana

Delaware

Virginia

Kentucky

Alabama

— McLaurin v. Board of Regents, 339 U. S. 637 
(1950);

— Wilson v. Board of Supervisors of L.S.U., 
92 F. Supp. 986 (E. D. La. 1950) aff’d 340 
U. S. 909; Ludley v. Board of Supervisors of 
L.S.U., 150 F. Supp. 900 (E. D. La. 1957), 
aff’d 252 F. 2d 372 (5th Cir. 1958), cert. den. 
358 U. S. 819; Tureaud v. Board of Super­
visors of L.S.U., 116 F. Supp. 248 (E. D. 
La. 1953) rev’d 207 F. 2d 807 (5th Cir. 
1953) vacated and remanded 347 IT. S. 971 
(1954) on remand 225 F. 2d 434 (5th Cir.
1955) on rehearing 228 F. 2d 895 (5th Cir.
1956) cert. den. 351 U. S. 924;

— Parker v. University of Delaware, 31 Del. 
Ch. 381, 75 A. 2d 225 (Del. Ch. 1950);

— Swanson v. University of Virginia, Civ. No. 
30 (W. D. Va. 1950) (Unreported);

— Wilson v. City of Paducah, Ky., 100 F. Supp. 
116 (W. D. Ky. 1951);

— Lucy v. Adams, 134 F. Supp. 235, aff’d 228 
F. 2d 619, cert. den. 351 U. S. 931; see also
350 U. S. 1;

North Carolina— Frazier v. Board of Trustees Univ. of N. S., 
134 F. Supp. 589 (M. D. N. C. 1955) ; Mc- 
Kissick v. Carmichael, 187 F. 2d 949 (4th 
Cir. 1951) ;

Tennessee — Booker v. State of Tenn. Bd. of Ed., 240 F.
2d 689 (6th Cir. 1957); cert. den. 353 U. S.
965;

Florida — Hawkins v. Board of Control of Florida, 347
U. S. 971 (1955); 350 U. S. 413 (1956); 
355 U. S. 839 (1957) 162 F. Supp. 851 
(N. D. Fla. 1957);

Georgia — Hunt v. Arnold, 172 F. Supp. 847 (N. D.
Ga. 1959) ; Holmes v. Danner, 191 F. Supp. 
394 (M. D. Ga. 1961);

Mississippi — Meredith v. Fair, 199 F. Supp. 754 (S. D.
Miss. 1961), aff’d 298 F. 2d 696 (5th Cir. 
1962), 202 F. Supp. 224 (S. D. Miss. 1962), 
rev’d ----- - F. 2d ------ (5th Cir. June 25,
1962).

Arkansas voluntarily admitted Negroes in 1950, following 
threat of legal action. Greenberg, Race Relations and Amer­
ican Law (1960), p. 262, n. 192.



19

Appellees’ defense that Clemson has no policy regarding 
the admission of Negroes (48a) has been tried in Georgia, 
Alabama and Mississippi without success. Holmes v. Dan­
ner, 191 F. Supp. 394, 402 (M. D. Ga. 1961); Lucy v. Adams, 
134 F. Supp. 235 (N. D. Ala. 1955), aff’d. 228 F. 2d 619 
(5th Cir. 1955), aff’d. 228 F. 2d 619 (5th Cir. 1955), cert, 
den. 351 IT. S. 931. See also 350 U. S. 1 (1955); Meredith 
v. Fair, 199 F. Supp. 754 (S. D. Miss. 1961), aff’d. 298 F. 2d 
696 (5th Cir. 1962), 202 F. Supp. 224 (S. D. Miss. 1962),
rev’d .----- F. 2 d ------  (5th Cir. June 25, 1962). Even the
claim that appellant’s application has not been completed 
is not new. Holmes v. Danner, 191 F. Supp. 385, 390, 393 
(M. D. Ga. 1960).

The court below’s finding that no decision can be reached 
on the issue of whether appellant’s application was treated 
in the same manner as all other applications until the 
treatment given such other applications is reviewed (202a) 
would be appropriate if appellant had brought this action 
in a state where Negroes have regularly been permitted to 
apply and enroll in the state schools of their choice. Such 
is not the case in South Carolina. The record shows as 
much. It further shows that appellant, a Negro and a 
good student was given a state scholarship to attend an 
out-of-state college, and his attempts to apply at Clemson 
College have received something considerably less than 
helpful support from appellees.

Where a state school which has never admitted a Negro, 
refuses to admit or even pass on the application of one 
whom its officials admit is eminently qualified, and defends 
on grounds similar to those offered by other states faced 
with the same problem, appellant submits that the burden 
falls to the school to show by more than mere denials of 
racial discrimination that white students similarly situated 
are treated in like fashion. This Court has frequently re­



20

quired as much of school boards who seek to administer 
desegregation of public schools through pupil placement 
plans. Administrative remedies provided by such plans 
need not be exhausted where, because the policy of seg­
regation has not been abandoned, such exhaustion would 
be useless and futile. Farley v. Turner, 281 F. 2d 131 
(1960); McCoy v. Greensboro City Board of Education, 283 
F. 2d 667 (1960); Green v. School Board of City of Roanoke, 
Va., 304 F. 2d 118 (4th Cir. 1962).

In the analogous cases involving allegations by a Negro 
criminal defendant of exclusion of Negroes from the jury, 
see cases cited in Eubanks v. Louisiana, 356 IT. S. 584, 585, 
proof that Negroes constitute a substantial segment of the 
population, that some Negroes are qualified to serve as 
jurors, and that, for an extended period of time none has 
been called for jury service, see Hernandez v. Texas, 347 
IT. S. 475; Norris v. Alabama, 294 U. S. 587, cannot be 
rebutted by mere denials of state officials that there was 
racial discrimination. Avery v. Georgia, 345 IT. S. 559; 
Reece v. Georgia, 350 U. S. 85; Eubanks v. Louisiana, supra.

Pending such proof that Clemson is no longer a school 
for white students only, appellant is entitled to relief 
which will protect his rights under the Fourteenth Amend­
ment to the United States Constitution.

B. The record in this case when applied to well-settled 
principles of law left no discretion in the court below 
to deny appellant’s prelim inary injunction.

Appellant has completed two years of college at Iowa 
State, and has for more than a year, vainly tried to transfer 
to Clemson College. Appellees admit that appellant is a 
“good student” (53a), and has “a better than average



21

academic record at Iowa State” (49a, 55a), a “top flight 
school” (Pi’s. Exh. 31, 123a). Nevertheless, the record 
shows that the appellees have committed themselves to 
what Judge Wisdom has called a program of “planned dis­
couragement and discrimination by delay.” Meredith v. 
Fair,----- - F. 2d-----  (5th Cir. June 25, 1962).

The elements of this program are procedural circumven­
tion, adherence to detailed eligibility requirements, and 
reliance on delay inherent in judicial remedies, all intended 
to conclude in appellant’s frustration or graduation prior 
to the date when by court order, appellees are required 
to open the facilities of Clemson College to all citizens of 
South Carolina. The irreparable harm which appellant 
suffers as a result of such delay is clear.

For this reason, the Fifth Circuit said in the Meredith 
case, supra,

“ . . . time is of the essence. In an action for admission 
to a graduate or undergraduate school, counsel for 
all the litigants and trial judges too should be sensi­
tive to the necessity for speedy justice. Lucy v. Adams, 
N. D. Ala., 1955, 134 F. Supp. 235, aff’d. 228 F. 2d 
619, cert. den. 351 U. S. 931; see also 350 U. S. 1, and 
Hawkins v. Board of Control, 1956, 350 TJ. S. 413.

The court below relied on several cases which indicate 
that the issuance of preliminary injunctions are within the 
discretion of the district court and will be granted only 
in rare circumstances (192a-195a). But the case here in­
volves rights protected by the equal protection clause of 
the Fourteenth Amendment, Such rights are “personal and 
present”. Siueatt v. Painter, 339 U. S. 629, 635 (1950); 
McLaurin v. Oklahoma State Regents, 339 U. S. 637, 642 
(1950). Cf. Sipuel v. Board of Regents, 332 U. S. 631 
(1948).



22

Moreover, this Court has recently held that there may he 
no delay in granting access to governmentally owned public 
facilities, even before a trial on the merits, where the right 
to relief is clearly established on motion for preliminary 
injunction. Henry v. Greenville Airport Commission, 284 
F. 2d 631 (4th Cir. 1960). It was there held that the 
trial court “has no discretion to deny relief by preliminary 
injunction to a person who clearly establishes by undis­
puted evidence that he is being denied a constitutional 
right”.

Not only are appellant’s constitutional rights being de­
nied, but unless the court below’s refusal to grant pre­
liminary relief is reversed, he may have advanced too far 
in his studies at Iowa State to make transfer practicable. 
In such event, a final decision in his favor will not prevent 
an irreparable injury to his constitutional rights. On the 
other hand, if a preliminary injunction is granted, appellees 
shall suffer no similar injury. The danger of irreparable 
injury in desegregation cases has been recognized. Brown 
v. Board of Education of Topeka, 347 U. S. 483 (1954); 
Lucy v. Adams, 350 U. S. 1 (1955).

Here too, the public interest is involved, for there is 
national concern and interest in the elimination of state- 
enforced racial segregation, generally, Hurd v. Hodge, 334 
U. S. 24 (1948), and particularly in education. Brown v. 
Board of Education of Topeka, 347 U. S. 483 (1954); 
Hawkins v. Board of Control, 347 U. S. 971; 350 U. S. 413; 
355 U. S. 839.

Finally, there is strong likelihood that appellant will 
prevail when this case reaches final hearing. Holmes v. 
Danner, supra, Lucy v. Adams, supra, Meredith v. Fair, 
supra.



23

In view of all of these factors, appellant submits that 
this Court’s ruling in Henry v. Greenville Airport Commis­
sion, supra, is applicable here, and should be followed.

CONCLUSION

It is respectfully submitted that the judgment of the 
court below should be reversed and the case remanded 
with directions that the appellant be granted the relief 
sought and such other and further relief as may be just.

Respectfully submitted,

Constance B aker Motley 
J ack Greenberg

10 Columbus Circle 
New York 19, New York

Matthew J. P erry 
L incoln C. J enkins, J r.

1107% Washington Street 
Columbia, South Carolina

D onald J ames S ampson 
W illie T. S mith, J r.

125% Falls Street 
Greenville, South Carolina

Attorneys for Appellant

D errick B ell 
Of Counsel



3 8