Gray v. University of Tennessee Board of Trustees Statement as to Jurisdiction

    S U P R E M E  C O U R T DF T H E  U N IT E D  S T A T E S

OCTOBER TERM, 1951

No. 120

GENE MITCHELL GRAY, LINCOLN ANDERSON 
BLAKENEY, JOSEPH HUTCH PATTERSON a n d  

JACK ALEXANDER, Appellants,
vs.

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

APPEAL PROM T H E  U N ITE D  STATES DISTRICT COURT POE T H E  EAST­

ERN  DISTRICT OF T EN N ESSEE

STATEMENT AS TO JURISDICTION

Carl A . C owan ,
A von N. W illia m s , J r.,
Z. A lexander L ooby, 
T hurgood Marshall, 
R obert L . Carter,

Counsel for Appellants.



INDEX

S u b je c t  I ndex

Statement as to jurisdiction......................................
Opinion below .......................................... ...........
Jurisdiction .........................................................
Questions presented ............................................
Statutes involved ................................................
Order involved ...................................................
Statement ............................................................
The questions are substantial...................... .

Appendix “A”—Opinion and order of the Three-
Judge C o u rt............................................................

Appendix “B”—Opinion of the United States District 
Court for the Eastern District of Tennessee...........

Page
1
1
2
2
3
oo
4 
7

10

16

T able oe Cases C ited

Buder, In re, 271 U. S. 461..........................................  9
Ficholz v. The Public Service Commission of Mis­

souri, 308 U. S. 268.................................................  2
Lemke v. Farmer Grain Co., 258 U. S. 50.................... 2
McLaurin v. Board of Regents, 339 U. S. 637............. 2,8
Missouri ex rel. Gaines v. Canada, 305 IT. S. 337....... 8
Oklahoma Natural Gas Co. v. Russell, 261 U. S. 390. . 2,9
Sipuel v. Board of Regents, 332 IT. S. 631................  8
Stratton  v. St. Louis S. W. R. R. Co., 282 U. S. 10... . 9
Sweatt v. Painter, 339 U. S. 629................................... 8
Wilson v. Board of Supervisors (Decided Jan. 2,

1951) .......................................................................  2

S tatutes C ited

Acts of Tennessee, 1807, ch. 64 and 78, as amended by 
Pub. Acts of 1840, ch. 98, Secs. 4 and 5; Pub. Acts 
of 1879, ch. 75; Pub. Acts of 1909, ch. 48; Pub. Acts 
of 1939, ch. 30, Sec. 1; Code of Tennessee, Vol. 1,
Title III, ch. 3, Art. 10; Acts of Tennessee, 1807, 
ch. 64, Sec. 3; Pub. Acts of 1840, ch. 186, Sec. 5;
Code of Tennessee, Secs. 563, 566, 577, 584, 8a and 
Pub. Acts of 1909, ch. 48, Sec. 1 ...............................  3

—5572



11 INDEX

Code of Tennessee:
Section 11395 .......................................................  5, 6, ,7
Section 11396 ....................................................... 5,6,7
Section 11397 .......................................................  5,6,7

Constitution of Tennessee, Article 11, Section 12.. . 3, 5, 6,7
United States Code, Title 28:

Section 1253 ..................
Section 1331 ..................
Section 1343 ..................
Section 2101 ......... .........
Section 2281 ..................
Section 2284 ..................

2
. . . 3, 5
. . . 3, 5

2
2, 3,5, 7, 8
. . . 3, 6



UNITED STATES DISTRICT COURT 
FDR THE EASTERN DISTRICT DF TENNESSEE, 

NORTHERN DIVISION

Civil Action No. 1567

GENE MITCHELL GRAY, LINCOLN ANDERSON 
BLAKENEY, JOSEPH HUTCH PATTERSON a n d  

JACK ALEXANDER,

vs.
Plaintiffs,

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

Defendants

STATEMENT AS TO JURISDICTION

In compliance with Rule 12 of the Rules of the Supreme 
Court of the United States, plaintiffs-appellants submit 
herewith their statement particularly disclosing the basis 
upon which the Supreme Court has jurisdiction on appeal to 
review the judgment of the District Court entered in this 
cause.

Opinion Below
The opinion of the District Court of three judges for the 

Eastern District of Tennessee entered on April 13, 1951, 
has not yet been reported. A copy of the opinion and of



2

the order are attached hereto as Appendix “ A.” The 
opinion of the District Court of one judge for the Eastern 
District of Tennessee entered on April 20, 1951, has not yet 
been reported and is attached hereto as Appendix “ B.”

Jurisdiction

The judgment of the District Court of three judges was 
entered on April 13, 1951. The petition for appeal was 
presented to the District Court herewith to wit on May 7, 
1951. The jurisdiction of the Supreme Court to review 
this decision by direct appeal is conferred by Title 28, 
United States Code, Sections 1253 and 2101 (b). The fol­
lowing decisions sustain the jurisdiction of the Supreme 
Court to review the judgment on direct appeal in this case: 
Wilson v. Board of Supervisors, — U. S. —, decided Jan. 
2, 1951; McLaurin v. Board of Regents, 339 U. S. 637; 
Oklahoma Natural Gas Co. v. Russell, 261 U. S. 290; 
Eichols v. The Public Service Commission of Missouri, et 
al., 306 U. S. 268; Lernke v. Farmer Grain Co., 258 U. S. 50.

Questions Presented 

I

Whether the constitutionality of an order of appellees, 
Board of Trustees of the University of Tennessee, and the 
Constitution and statutes of the state on which said order 
is based refusing to admit appellants to the University of 
Tennessee solely because of race and color may properly be 
raised in an action brought pursuant to Title 28, United 
States Code, Section 2281, where appellants seek to enjoin 
enforcement of the order, Constitution and statutes on the 
ground of their enforcement denying to them the equal 
protection of the laws secured by the Constitution of the 
United States?



3

II

Whether Title 28, United States Code, Section 2281, con­
fers exclusive jurisdiction in a District Court of three 
judges to determine whether enforcement of an order re­
fusing to grant appellants’ admission to the University of 
Tennessee solely because of race or color, adopted pursuant 
to the Constitution and statutes of Tennessee, should be 
enjoined as violative of the Constitution of the United 
States and whether such court convened in accordance with 
Title 28, United States Code, Section 2284, can properly 
refuse jurisdiction?

III
Whether appellants’ motion for judgment on the plead­

ings should have been granted?

Statutes Involved
Title 28, United States Code, Sections 1331, 1343, 2281 

and 2284; Article 11, Section 12 of the Constitution of 
Tennessee, and Sections 11395, 11396 and 11397 as set forth 
in Appendix “ C” hereto.

Order Involved
The appellees, Board of Trustees of the University of 

Tennessee, which exists pursuant to the Constitution and 
laws of the State of Tennessee as a state administrative 
agency or board (Constitution of Tennessee, Art. 11, Sec. 
12; Acts of Tennessee, 1807, ch. 64 and 78, as amended by 
Pub. Acts of 1840, ch. 98, Secs. 4 and 5; Pub. Acts of 1879, 
ch. 75; Pub. Acts of 1909, ch. 48; Pub. Acts of 1939, ch. 30, 
Sec. 1; Code of Tennessee, Vol. 1, Title III, ch. 3, Art. 10; 
Acts of Tennessee, 1807, ch. 64, Sec. 3; Pub. Acts of 1840, 
ch. 186, Sec. 5; Code of Tennessee, Secs. 563, 566, 577, 584.8a 
and Pub. Acts of 1909, ch. 48, Sec. 1), on or about the



4

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

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

“  B e  I t T herefore  R esolved, that the applications by 
members of the Negro race for admission as students 
into The University of Tennessee be and the same are 
hereby denied.”

This order is set forth in Appendix “ D ” hereto.

Statement

Appellants are all Negroes, citizens of the United States 
and of the State of Tennessee. Appellants, Gene Mitchell 
Gray and Jack Alexander, applied for admission to the 
Graduate School of the University of Tennessee, such ap­
plications being for registration on the first day of the 1950 
fall quarter and on the first day of the 1951 winter quarter, 
respectively. Appellants, Lincoln Anderson Blakeney and 
Joseph Hutch Patterson, applied for admission as first-year 
students in the College of Law of the University of Tennes­
see, such applications being for registration on the first day 
of the winter quarter, 1951. All appellants meet all the law­
ful requirements for admission to the school or college to 
which they applied and would have been admitted without 
question except for the fact that they are Negroes. The Uni­
versity of Tennessee is the only institution maintained by

4th of December, 1950, took the following action with re­
spect to appellants’ application for admission to the Uni­
versity of Tennessee:



5

the state where appellants may receive the educational op­
portunities and advantages they seek.

On December 4, 1950, appellees, the Board of Trustees of 
the University of Tennessee, met and denied appellants 
admission because of their race and color on the grounds 
that to so admit them would be in violation of the Constitu­
tion and laws of the State. This denial was embodied in a 
formal order adopted by appellees and set out supra.

Appellants thereupon brought an action in the United 
States District Court for the Eastern District of Tennessee 
pursuant to Title 28, United States Code, Sections 1331, 
1343 and 2281 on their own behalf, and on behalf of all other 
Negroes similarly situated, seeking a preliminary and per­
manent injunction restraining appellees from enforcing said 
order and from making any distinction on the basis of race 
and color in the consideration of appellants’ applications 
for admission as students to the University of Tennessee, 
and from enforcing Article 11, Section 12 of the Constitu­
tion of the State and Sections 11395, 11396 and 11397 of the 
Code of Tennessee on the grounds that the enforcement of 
said order, constitutional provisions or statutes would be 
an unconstitutional deprivation of appellants ’ rights.

Appellees, in their answer, admitted as a first defense that 
they had refused appellants’ admission pursuant to Article 
11, Section 12 of the Constitution of the State of Tennes­
see ; and as a second defense that such refusal was required 
by Sections 11395, 11396 and 11397 of the Code of Ten­
nessee which made it unlawful for Negroes and white per­
sons to be taught together in the same school. Appellants ’ 
allegation that the University of Tennessee was the only 
state institution where appellants could secure the educa­
tional opportunities and advantages they seek was not con­
troverted by appellees. Whereupon appellants filed a mo­
tion for judgment on the pleadings.



6

Pursuant to appellants’ request, a special three-judge 
District Court was convened in accordance with Title 28, 
United States Code, Section 2884 and a hearing on said 
motion for judgment on the pleadings was held on March 
13, 1951, before such court. In their complaint, and at the 
hearing, appellants urged the issuance of both a temporary 
and a permanent injunction enjoining enforcement of the 
order of December 4, 1950, and of Article 11, Section 12 of 
the Constitution and Sections 11395, 11396 and 11397 of the 
Code of Tennessee on the grounds that they were uncon­
stitutional.

On April 13, 1951, the court below rendered an opinion 
disclaiming jurisdiction of this controversy for the reason 
that the right of the state to require segregation of the 
races in educational institutions had been consistently 
upheld by the United States Supreme Court. (See Opinion, 
Appendix A.) An order was issued dissolving the District 
Court of three judges on the grounds that the real issue 
raised was whether there had been a denial to appellants 
of the equal protection of the laws without regard to the 
constitutionality of the order, constitutional provisions or 
statutes heretofore referred to. The cause was ordered 
to proceed before a District Court of one judge. On April 
20, 1951, the District Court of one judge, without further 
action by appellants, handed down an opinion in which 
appellees’ refusal to admit appellants to the University of 
Tennessee was declared to be a denial of the equal pro­
tection of the laws. The Court said:

“ The Court finds that under the Gaines, Sipuel, 
Sweatt and McLaurin eases heretofore cited, these 
plaintiffs are being denied their right to the equal 
protection of the law7s as provided by the Fourteenth 
Amendment and holds that under the decisions of the 
Supreme Court the plaintiffs are entitled to be admitted 
to the Schools of the University of Tennessee to which



7

they have applied for admission. Believing that the 
University authorities will either comply with the laws 
as herein declared or take the case up on appeal, the 
Court does not deem an injunctive order presently to 
be appropriate. The case, however, will be retained 
on the docket for such orders as may seem proper when 
it appears that the applicable law has been finally 
declared.”

It is appellants’ contention that issuance of a declaratory 
judgment in which appellants are declared to be entitled to 
admission to the University does not accord to them the 
protection to which they are entitled. The Court, on April 
20, 1951, specifically refused to grant to appellants injunc­
tive relief prayed for in their complaint. It is appellants’ 
contention that the issuance of an injunction by a single 
District Judge would have been a nullity in view of Title 28, 
United States Code, Section 2281, since such an injunction 
must necessarily be based on the unconstitutionality of 
the order of appellees denying appellants admission to the 
University of Tennessee; of Article 11, Section 12 of the 
Constitution of Tennessee and Sections 11395, 11396 and 
11397 of the Code of Tennessee upon which the December 
4, 1950, order was based and would require action by a 
District Court of three judges.

We bring the cause here in order to seek a reversal of 
the order issued on April 13, 1951, dissolving the three- 
judge court and disclaimer of jurisdiction, and a judgment 
from this Court granting appellants’ motion for judgment 
on the pleadings.

The Questions Are Substantial
The issues involved in this appeal are similar to those 

raised by Wilson v. Board of Supervisors, supra, and 
MaLaurim v. Board of Regents, supra. These issues are of 
great importance and involve the protection and the rights 
of appellants and the class they represent to the equal



protection of the laws with respect to the equality of oppor­
tunity to secure the educational advantages and facilities 
offered by the University of Tennessee. Appellants have 
been excluded from the University in reliance upon the 
segregation statutes and criminal sanctions of the Code of 
Tennessee. These statutes, as applied, are unconstitutional 
in that there is no other institution in which appellants may 
secure equal educational advantages. Missouri ex rel. 
Gaines v. Canada, 305 U. S. 337; Sipuel v. Board of Regents, 
332 U. S. 631; Sweatt v. Painter, 339 U. S. 629; McLaurin 
v. Board of Regents, supra. Their rights are substantial 
and appellants are entitled to speedy redress in the form 
of a permanent injunction restraining appellees from re­
fusing to admit them to the University of Tennessee solely 
because of race and color. This remedy is only available 
through a District Court of three judges and the court 
below was in error in holding that it was without jurisdic­
tion to decide this cause. This Court, in previous cases, 
has held in an action of this character that Title 28, United 
States Code, Section 2281, may properly be invoked. Wil­
son v. Board of Supervisors, supra; McLaurin v. Board of 
Regents, supra. The refusal of the court below to decide 
this cause and its referral of the question to a court of one 
judge, therefore, is directly contrary to decisions of this 
Court.

The question as to whether appellants are entitled to a 
judgment on the pleadings and for an order requiring their 
admission to the University of Tennessee in view of the fact 
that there is no other school maintained by the state to 
which appellants may attend has been conclusively settled 
in appellants’ favor by decisions of this Court. Missouri 
ex rel. Gaines v. Canada, supra; Sipuel v. Board of Regents, 
supra; Sweatt v. Painter, s-upra.; Wilson v. Board of Super­
visors, supra. Therefore, the refusal of the court below to 
give appellants affirmative relief by granting their motion



9

for judgment on the pleadings and through issuance of an 
injunction ordering their admission is in direct conflict with 
decisions of this Court and hence presents a question of 
substantial nature for this Court’s decision.

Their attempt to transfer the cause before a District 
Court of one judge should be declared a nullity since this 
is a cause in which the action of a District Court of three 
judges is required. McLaurin v. Board of Regents, supra; 
Wilson v. Board of Supervisors; Oklahoma Natural Gas 
Company v. Russell, 261 U. S. 290; Stratton v. St. Louis 
S. W. R. Co., 282 U. S. 10; In Re Buder, 271 U. S. 461; 
Lemke v. Farmers Grain Co., supra.

W h erefo re , it is submitted that this appeal should be 
granted, and that the order of April, 1951, should be re­
versed and the cause remanded with specific instructions 
to the court to issue an injunction ordering appellants’ 
admission to the University of Tennessee.

Respectfully submitted,
C ash A. C owan ,

1011/2 W. Vine Avenue,
Knoxville, Tennessee;

A von N. W illia m s , J r .,
511 E. Vine Avenue,

Knoxville 15, Tennessee;
Z. A lexander L ooby,

419 Fourth Avenue, North,
Nashville, Tennessee;

T htjrgood M arshall,
20 West 40th Street,

New York 18, N. Y.;
R obert L . Carter,

20 West 40th Street,
New York 18, N. Y ., 

Counsel for Plaintiffs-Appellants.
Dated: May 7, 1951.



10

APPENDIX “A”

Civil Action No. 1567

Gen e  M it c h e l l  Gray, L in c o ln  A nderson  B la k en ey , J o­
s e p h  H u t c h  P atterson and J ack A lexander, Plaintiffs,

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

E tc ., et  al., Defendants

Before M iller , Circuit Judge, D arr and T aylor, District 
Judges.
M iller , Circuit Judge. The plaintiffs by this action seek 

to enjoin the Board of Trustees of the University of Ten­
nessee, the University of Tennessee, and certain of its 
officers from denying them admission to the Graduate 
School and to the College of Law of the University because 
they are members of the Negro race.

In brief, the complaint alleges that the plaintiffs are 
citizens of the United States and of the State of Tennessee, 
are residents of and domiciled in the City of Knoxville, 
State of Tennessee, and are members of the Negro race; 
that plaintiffs, Gene Mitchell Gray and Jack Alexander, 
are fully qualified for admission as graduate students to the 
Graduate School of the University; that plaintiffs Lincoln 
Anderson Blakeney and Joseph Hutch Patterson are fully 
qualified for admission as undergraduate students in law to 
the College of Law of the University; that the four plain­
tiffs are ready, willing and able to pay all lawful charges 
and fees, and to comply with all lawful rules and regula­
tions, requisite to their admission; that the University of 
Tennessee is a corporation duly organized and existing 
under the laws of Tennessee, was established and is oper­
ated as a State function by the State of Tennessee, with 
two of its integral parts or departments being the Graduate

UNITED STATES DISTRICT COURT, FOR THE
EA STERN  DISTRICT OF TEN N ESSEE, NORTH­
ERN DIVISION



11

School and the College of Law; that it operates as an es­
sential part of the public school system of the State of 
Tennessee, maintained by appropriations from the public 
funds of said State raised by taxation upon the citizens 
and taxpayers of the State including the plaintiffs; that 
there is no other institution maintained or operated by the 
State at which plaintiffs might obtain the graduate or legal 
education for which they have applied to the Univer­
sity of Tennessee; that the plaintiffs Gene Mitchell Gray 
and Jack Alexander applied for admission as graduate 
students to the Graduate School of the University and that 
the plaintiffs Lincoln Anderson Blakeney and Joseph Hutch 
Patterson applied for admission as undergraduate students 
in law to the College of Law of the University; and that on 
or about December 4, 1950, the Board of Trustees of the 
University refused and denied each and all of their appli­
cations for admission because of their race or color, relying 
upon the Constitution and Statutes of the State of Tennes­
see providing that there shall be segregation in the educa­
tion of the races in the schools and colleges in the State. 
Plaintiffs contend that the action of the defendants in deny­
ing them admission to the University denies the plaintiffs, 
and other Negroes similarly situated, because of their race 
or color, their privileges and immunities as citizens of the 
United States, their liberty and property without due 
process of law, and the equal protection of the laws, se­
cured by the 14th Amendment of the Constitution of the 
United States and by Section 41, Title 8, United States 
Code.

The defendants, by answer, state that they are acting 
under and pursuant to the Constitution and the Statutes of 
the State of Tennessee, by which they are enjoined from 
permitting any white and negro children to be received as 
scholars together in the same school; that provision has 
been made by Tennessee Statutes to provide professional 
education for colored persons not offered to them in state 
colleges for Negroes but offered for white students in the 
University of Tennessee; that the State of Tennessee, under 
its Constitution and Statutes and under its police power, 
has adopted reasonable regulations for the operation of its



12

institutions based upon established usages, customs and 
traditions, and such regulations being reasonable are not 
subject to challenge by the plaintiffs; and that the 14th 
Amendment of the Constitution of the United States did not 
authorize the Federal Government to take away from the 
State the right to adopt all reasonable laws and regulations 
for the preservation of the public peace and good order 
under the inherent police power of the State.

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

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

The plaintiffs rely chiefly upon the decisions of the Su­
preme Court in Missouri v. Canada, 305 U. S. 337, Sipuel 
v. Board of Regents, 332 IT. S. 631, Sweatt v. Painter, 339 
U. S. 629 and McLaurin v. Oklahoma State Regents, 339 
U. S. 637, in which State Universities were required to ad­
mit qualified negro applicants. In each of those cases the 
plaintiff was granted the right to be admitted to the State 
University on equal terms with white students because of 
the failure of the State to furnish to the negro applicant 
educational facilities equal to those furnished white stu­
dents at the State University. The rulings therein are based 
upon illegal discrimination under the equal protection 
clause of the 14th Amendment, not upon the unconstitu­



13

tionality of a State statute. In Sweatt v. Painter, supra, 
the Court expressly pointed out (339 IT. S. at Page 631) that 
it was eliminating from the case the question of constitu­
tionality of the State statute which restricted admission 
to the University to white students. Those cases did not 
change the rule, previously laid down by the Supreme 
Court, that State legislation requiring segregation was not 
unconstitutional because of the feature of segregation, 
Plessy v. Ferguson, 163 U. S. 537; McCabe v. Atchison T. 
d  S. F. Ry. Co., 235 U. S. 151, provided equal facilities were 
furnished to the segregated races. In Sweatt v. Painted, 
supra, the Supreme Court declined (339 U. S. at Page 636) 
to re-examine its ruling in Plessy v. Ferguson, supra. In 
Berea College v. United States, 211 U. S. 45, and Gong Burn 
v. Rice, 275 U. S. 78, state segregation statutes dealing spe­
cifically with education were not held to be unconstitutional. 
The validity of such legislation was recognized in Missouri 
v. Canada, supra, wherein the Court stated (305 U. S. at 
page 344)—“ The State has sought to fulfill that obligation 
by furnishing equal facilities in separate schools, a method 
the validity of which has been sustained by our decisions.” 
In that case, as well as in Sweatt v. Painter, supra, there 
were State statutes which required segregation for the 
purpose of higher education, but the decisions in those cases 
did not declare those statutes unconstitutional.

By Chapter 43 of the Public Acts of 1941, the State of 
Tennessee authorized and directed the State Board of Edu­
cation and the Commissioner of Education to provide edu­
cational training and instruction for negro citizens of Ten­
nessee equivalent to that provided at the University of Ten­
nessee by the State of Tennessee for white citizens of Ten­
nessee, such training and instruction to be made available 
in a manner to be prescribed by the State Board of Educa­
tion and the Commissioner of Education, provided, that the 
members of the negro race and white race should not attend 
the same institution or place of learning. The Supreme 
Court of Tennessee has held that Act to be mandatory in 
character. State ex rel. Michael v. Witharn, 179 Tenn. (15 
Beeler) 250. Such legislation, specifically requiring equal 
educational training and instruction for white and negro



14

citizens, appears to go further than did some of the State 
Statutes involved in the Supreme Court cases above re­
ferred to, which were not declared unconstitutional in those 
cases. In our opinion, this' case does not turn upon the 
unconstitutionality of the state statutes, but presents the 
same issue as was presented to the Supreme Court in Mis­
souri v. Canada, supra, Sipuel v. Board of Regents, supra, 
Sweatt v. Painter, supra, and McLaurin v. Oklahoma State 
Regents, supra, namely, the question of discrimination 
under the equal protection clause of the 14th Amendment. 
Accordingly, this case, at least in its present stage, is one 
for decision by the District Judge, in the district of its 
filing, on the* issue of alleged discrimination against the 
plaintiffs under the equal protection clause of the 14th 
Amendment. Such an issue does not address itself to a 
three-judge court. Ex parte Bransford, 310 U. S. 354; 
Ex parte Collins, 277 U. S. 565; Rescue Army v. Municipal 
Court, 331 U. S. 549, 568-574.

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



15

1567

Ge n e  M it c h e l l  Gray, L in co ln  A nderson  B la k en ey , J oseph  
H u t c h  P atterson a n d  J ack A lexander, Plaintiffs,

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

E tc., et al., Defendants

UNITED STATES DISTRICT COURT FOR THE
EA STERN DIVISION OF TEN N ESSEE, NORTHERN
DIVISION

O rder

Before Miller, Circuit Judge; Darr and Taylor, District
Judges

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

And the Court being of the opinion that the issue involved 
is alleged unjust discrimination against the plaintiffs under 
the Equal Protection Clause of the Fourteenth Amendment 
of the Constitution of the United States, and not the consti­
tutionality of certain statutes of the State of Tennessee, 
referred to in the pleadings;

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

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

(S .)  S hackelford  M iller , J r .,
Circuit Judge;

(S .)  L eslie  R . D ark,
District Judge;

(S .) R obt. L . T aylor,
District Judge.



16

APPENDIX “B”

IN TH E UNITED STATES DISTRICT COURT FOR
TH E EA STERN  DISTRICT OF TEN N ESSEE,
NORTHERN DIVISION

Civil No. 1567

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

vs.
U niversity  o f  T e n n essee  e t  al.

This case was heard by a three-judge court on the record, 
briefs and argument of counsel for the respective parties 
on plaintiffs’ motion for summary judgment in their favor 
under Rule 56 of the Federal Rules of Civil Procedure.

In an opinion by Circuit Judge Miller, in which Chief 
District Judge Darr and District Judge Taylor of the East­
ern District of Tennessee, concurred, the Court held that 
the issue involved is alleged unjust discrimination against 
the plaintiffs under the equal protection clause of the Four­
teenth Amendment of the Constitution of the United States 
and not the constitutionality of the Tennessee statutes and 
constitutional provisions referred to in the complaint. Fol­
lowing this opinion and the order entered pursuant thereto, 
Judge Miller and Judge Darr withdrew from the case, 
which is now before this Court for decision on the motion.

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

“ Whereas, the Constitution and the statutes of the 
State of Tennessee expressly provide that there shall 
be segregation in the education of the races in schools



17

and colleges in the State and that a violation of the laws 
of the State in this regard subjects the violator to prose­
cution, conviction, and punishment as therein provided; 
and,

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

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

Following the indicated action by the Board of Trustees, 
plaintiffs filed their joint complaint for themselves and on 
behalf of all negro citizens similarly situated, praying for 
a temporary and, after hearing, a permanent order restrain­
ing the defendants from executing the exclusion order of 
the Board of Trustees against the plaintiffs, or other ne­
groes similarly situated, and from all action pursuant to the 
constitution and statutes of the State of Tennessee, and the 
custom or usage of the defendants, respecting the require­
ment of segregation of whites and negroes in state-sup­
ported educational institutions and exclusion of negroes 
from the University of Tennessee, their references being to 
Article 11, sec. 12, of the state constitution, to sections 2403.1,
2403.3, 11395, 11396, and 11397 of the Tennessee Code, and 
the custom and usage of defendants of excluding negroes 
from all colleges, schools, departments, and divisions of the 
University of Tennessee, including the Graduate School and 
the College of Law.

Defenses interposed are nine in number, but in substance 
they are these: That defendants, in rejecting the applica­
tions of the plaintiffs, were and are obeying the mandates 
of the segregation provisions of the constitution and laws 
of the State of Tennessee; that those provisions are in 
exercise of the police powers reserved to the states and are 
valid, the Fourteenth Amendment and laws enacted there­
under to the contrary notwithstanding, and that these plain­
tiffs have no standing to bring this action for the reason 
that they have not exhausted their administrative remedies 
under the equivalent facilities act of 1941, Code section



18

2403.3. The plaintiffs, after alleging in their complaint that 
the University of Tennessee maintains a Graduate School 
and a College of Law which offer to white students the 
courses sought by plaintiffs, make the following specific 
allegation, which defendants, for failure to deny, admit: 
“ There is no other institution maintained or operated by the 
State of Tennessee at which plaintiffs might obtain the 
graduate and/or legal education for which they respectively 
have applied to The University of Tennessee.”

It is, of course, recognized that the Constitution of the 
United States is one of enumerated and delegated powers. , 
To remove original doubt as to the character of federal 
powers, the states adopted the Tenth Amendment, which 
provides: “ The powers not delegated to the United States 
by the Constitution, nor prohibited by it to the States, are 
reserved to the States respectively, or to the people.” The 
Constitution contains no specific delegation of police powers, 
and those powers are accordingly reserved. But a glance 
discloses that, in relation to the Tenth Amendment, the 
Constitution contains two groups of powers, namely, the 
previously-delegated powers and the subsequently-delegated 
powers. By adoption of the Fourteenth Amendment, follow­
ing adoption of the Tenth Amendment, the states consented 
to limitations upon their reserved powers, particularly in 
the following respects: “ . . .  No State shall make or 
enforce any law which shall abridge the privileges or im­
munities of citizens of the United States; nor shall any State 
deprive any person of life, liberty, or property, without 
due process of law; nor deny to any person within its 
jurisdiction the equal protection of the laws . . . ”

It is recognized that “ the police power of a state extends 
beyond health, morals and safety, and comprehends the 
duty, within constitutional limitations, to protect the well­
being and tranquility of a community.” Kovacs v. Cooper, 
336 U. S. 77, 83. (Italics supplied). States “ have power 
to legislate against what are found to be injurious practices 
in their internal commercial and business affairs, so long 
as their laws do not run afoul of some specific constitutional 
prohibition, or of some valid federal law.” Whitaker v. 
North Carolina, 335, U. S. 525, 536. (Italics supplied).



19

In the foregoing quotations, the italicized portions point 
up the limitations upon the exercise of a state’s police 
powers.

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

The second question is whether the plaintiffs have pres­
ent standing to bring this action. To understand the de­
fense interposed here, it is desirable to look at the historical 
background of the act of 1941, of which the Court takes 
judicial notice.

On October 18, 1939, six negroes applied for admission to 
the University of Tennessee, four to the Graduate Depart­
ment and two to the College of Law. Being denied admis­
sion, they filed their separate petitions for mandamus in 
the Chancery Court of Knox County, Tennessee, to require 
their admission. Following denial of the petitions in a 
consolidated proceeding, an appeal was taken to the Su­
preme Court of Tennessee, where the action of the Chan­
cellor was affirmed by opinion filed November 7, 1942. State



20

ex rel. Michael et al. v. Witham et al., 179 Tenn. 250. The 
case was not disposed of by the Chancellor on its merits, 
but on the ground that it had become moot. While the case 
was pending in the Chancery Court, the state legislature 
enacted the act of 1941, now carried in the Code as sec.
2403.3, and entitled, Ediocational facilities for negro citizens 
equivalent to those provided for white citizens:

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

Following enactment of the statute a supplemental answer 
was filed in the case then pending, in which it was averred 
that pursuant to the Act certain committees had been 
appointed by the state board of education, with instructions 
to report at the board’s next regular meeting, an averment 
which suggested that the act of 1941 was to be made opera­
tive expeditiously.

The Supreme Court of Tennessee, in affirming the Chan­
cellor’s dismissal of the consolidated case, construed the 
act of 1941 to be mandatory in character. “ No discretion 
whatever is vested in the State Board of Education under 
the Act as to the performance of its mandates. The manner 
of providing educational training and instruction for negro 
citizens equivalent to that provided for white citizens at the 
University of Tennessee is for the Board of Education to 
determine in its sound discretion, but the furnishing of such



21

equivalent instruction is mandatory. ’ ’ State ex rel. Michael 
et al. v. Witham et al., 179 Tenn. 250, 257.

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

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

By failure to deny the allegations of the complaint, de­
fendants admit that the directive, though mandatory, has 
not been carried out. Nevertheless, it is urged by defend­
ants that these plaintiffs have no standing here until they 
have petitioned the state board of education to furnish the 
equivalent educational training and instruction for negroes 
provided for by the act. The Supreme Court of the state 
noted in its opinion that the then applicants for admission 
to the University of Tennessee had given to the state board 
“ no such advance notice” of a desire to be furnished facil­
ities under the act. That omission is understandable here 
for the reason that their applications for admission to the 
University of Tennessee had not been finally disposed of by



22

the courts, and the need of their applying to the state board 
had not been established.

Since the enactment of the Act of 1941 and the decision 
in State ex rel. Michael et al. v. Witham et al., 179 Tenn. 250, 
the Supreme Court of the United States has emphasized the 
pronouncement of one of its older cases as to a particular 
element of equal protection. In Missouri ex rel. Gaines v. 
Canada, 305 U.S. 337, it appeared that Lincoln University, 
a state-supported school for negroes, intended to establish 
a law school. As to this intention the court said: . . it
cannot be said that a mere declaration of purpose, still 
unfulfilled, is enough.” Missouri ex rel. Gaines v. Canada, 
305 U.S. 337, 346. In the same case, at page 351, the court 
said: “ Here, petitioner’s right was a personal one. It was 
as an individual that he was entitled to the equal protection 
of the laws, and the State was bound to furnish him within 
its borders facilities for legal education substantially equal 
to those which the State there afforded for persons of the 
white race, . . . ” Later declarations indicate that the two 
quotations should be read together and that when so read 
they state the requirement of equality of opportunity to be 
personal and immediate.

In Fisher v. Hurst, 333 U.S. 147, the court emphasized its 
position that equality of opportunity in education means 
present equality, not the promise of future equality. This 
re-emphasized the necessity of equality as to time of an 
earlier decision, where the court said: “ The State must 
provide it for her in conformity with the equal protection 
clause of the Fourteenth Amendment and provide it as soon 
as it does for applicants of any other group.” Sipuel v. 
Board of Regents of the University of Oklahoma et al., 332 
U.S. 631. In the holding in McLaurin v. Oklahoma State 
Regents, 339 U.S. 637, 642, the court said: “ We conclude 
that the conditions under which this appellant is required 
to receive his education deprive him of his personal and 
present right to the equal protection of the laws.” That 
equality of educational opportunity for negroes means 
present equality was emphasized once more in Sweat! v. 
Painter et al., 339 U.S. 629, 635: “ This Court has stated 
unanimously that ‘The State must provide (legal education)



23

for (petitioner) in conformity with the equal protection 
clause of the Fourteenth Amendment and provide it as soon 
as it does for applicants of any other group’. Sipuel v. 
Board of Regents, 332 U.S. 63i, 633.” In view of these 
recent declarations of the Supreme Court of the United 
States, this Court is forced to conclude that the defense of 
exhaustion of administrative remedies fails.

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

(S.) B obt. L. T aylob,
United States District Judge.

APPENDIX “C”

CONSTITUTION OF THE STATE OF TENNESSEE 

Article 11, Section 12:

. And the fund called the common school fund, 
and all the lands and proceeds thereof . . . heretofore 
by law appropriated by the General Assembly of this 
State for the use of common schools, and all such as 
shall hereafter be appropriated, shall remain a per­
petual fund, . . . and the interest thereof shall be 
inviolably appropriated to the support and encourage­
ment of common schools throughout the State, and 
for the equal benefit of all the people thereof . . .



24

No school established or aided under this section shall 
allow white and negro children to be received as 
scholars together in the same school . .

CODE OF THE STATE OF TENNESSEE 

Section 11395:
. . It shall be unlawful for any school, academy, 

college, or other place of learning to allow white and 
colored persons to attend the same school, academy, 
college, or other place of learning. ’ ’

Section 11396:
” . . . It shall be unlawful for any teacher, professor, 

or educator in any college, academy, or school of 
learning, to allow the white and colored races to attend 
the same school, or for any teacher or educator or other 
person to instruct or teach both the white and colored 
races in the same class, school, or college building, or 
in any other place or places of learning, or allow or 
permit the same to be done with their knowledge, con­
sent or procurement.”

Section 11397:
” . . .  Any person violating any of the provisions of 

this article, shall be guilty of a misdemeanor, and, 
upon conviction, shall be fined for each offense fifty 
dollars, and imprisonment not less than thirty days 
nor more than six months. ’ ’

TITLE 28, UNITED STATES CODE 

Section 1331. Federal question; amount in controversy
The district courts shall have original jurisdiction of all 

civil actions wherein the matter in controversy exceeds 
the sum or value of $3,000, exclusive of interest and costs, 
and arises under the Constitution, laws or treaties of the 
United States.



25

Section 1343. Civil rights

(3) To redress the deprivation, under color of any State 
law, statute, ordinance, regulation, custom or usage, of any 
right, privilege or immunity secured by the Constitution 
of the United States or by any Act of Congress providing 
for equal rights of citizens or of all persons within the 
jurisdiction of the United States.

Section 2281. Injunction against enforcement of State 
Statute; three-judge court required

An interlocutory or permanent injunction restraining the 
enforcement, operation or execution of any State statute 
by restraining the action of any officer of such State in the 
enforcement or execution of such statute or of an order 
made by an administrative board or commission acting 
under State statutes, shall not be granted by any district 
court or judge thereof upon the ground of the unconsti­
tutionality of such statute unless the application therefor 
is heard and determined by a district court of three-judges 
under section 2284 of this title.

Section 2284. Three-judge district court; composition; 
procedure

In any action or proceeding required by Act of Congress 
to be heard and determined by a district court of three 
judges the composition and procedure of the court, except 
as otherwise provided by law, shall be as follows: 1

(1) The district judge to whom the application for in­
junction or other relief is presented shall constitute one 
member of such court. On the filing of the application, he 
shall immediately notify the chief judge of the circuit, who 
shall designate two other judges, at least one of whom shall 
be a circuit judge. Such judges shall serve as members of 
the court to hear and determine the action or proceeding.

The district courts shall have original jurisdiction of
any civil action authorized by law to be commenced by any
person :



26

APPENDIX “D”

DECEMBER 4, 1950 ORDER OF THE BOARD OF 
TRUSTEES, UNIVERSITY OF TENNESSEE

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

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

B e I t T h erefore  R esolved, that the applications by 
members of the Negro race for admission as students into 
The University of Tennessee be and the same are hereby 
denied.

C ertificate

“ We, Carl A. Cowan and Avon N. Williams, Jr., Attor­
neys for the plaintiffs-appellants, Gene Mitchell Gray, 
Lincoln Anderson Blakeney, Joseph Hutch Patterson and 
Jack Alexander, do hereby certify that the foregoing Order 
is a true, full, correct and complete copy of the Resolution 
or Order adopted by the Board of Trustees of The Univer­
sity of Tennessee at their meeting on Monday, December 
4, 1950, as enclosed in a letter dated December 7, 1950 
mailed to us from Cloide Everett Brehrn, President of The 
University of Tennessee, and as more particularly set forth 
in Exhibits ‘C’ and ‘ D’ of plaintiffs’ complaint.”

This 7th day of May, 1951.
(8.) Carl A. C owan ,

1011/2 W. Vine Avenue,
Knoxville, Tennessee;

(S.) A von N. W illia m s , J r.,
511 E. Vine Avenue,
Knoxville 15, Tennessee, 

Attorneys for Plaintiffs-Appellants.

(5572)