Clay v. United States Brief for Petitioner

This item is featured in:

Elizabeth Bartholet Oral History

    1ST THE

Supreme Court of the United States
October Term, 1949

No. 34

G. W. McLAURIN,

vs.
Appellant,

OKLAHOMA STATE REGENTS FOR HIGHER EDU­
CATION, BOARD OF REGENTS OF UNIVERSITY 
OF OKLAHOMA, ET AL.

A PPE A L FRO M  T H E  D ISTRICT COURT OF T H E  U N IT E D  STATES 
FOR T H E  W E STE R N  D ISTRICT OF O K L A H O M A

BRIEF FOR APPELLANT.

R obert L. Carter,
A mos T. H all,
T hurgood Marshall,

Attorneys for Petitioner.
J ack Greenberg,
Constance B. M otley,
F rank D. R eeves,

Of Counsel.

A nnette H . P eyser,
Research Consultant.



I N D E X

PAGE

Opinion B elow ______________________________________  1
Statement of Jurisdiction __________________________  2

The State Statutes and Administrative Order, the 
Validity of'Which Is Involved_________________ 3

Order by Board of Regents of University of Okla­
homa, a State Board, Acting Pursuant to State 
Statutes, the Validity of Which Is Involved____ 5

Statement of the C ase_______________________________ 6
Question Presented__________________________________  10
Errors Relied U p on _________________________________  10
Summary of Argum ent______________________________ 12

Argument:
I—The exclusion of appellant from the regular class­

room and the requirement of spacial segregation 
solely because of race and color is in violation of 
the Fourteenth Amendment____________________  15
A. The limitation on a state’s right to classify

for legislative purposes_____________________  16
The Objectives of Public Education ________  17
Neither Race, Ancestry Nor Skin Pigmenta­
tion of Students Has Any Pertinence to the 
Objectives of Public Education_____________  22
Compulsory Racial Segregation in Public Ed­
ucation Is An Arbitrary and Unlawful Clas­
sification Within the General Limitations Upon 
Right of States to Classify Its Citizens______  24

B. Classifications by governmental agencies based
solely on race or ancestry are particularly 
odious to our principles of equality _   30



IX

C. The public policy of Oklahoma of requiring 
racial segregation in graduate public educa­
tion is in direct conflict with the federally 
protected right of appellant to be free from 
state imposed racial distinctions-------------------  35

II—The separate but equal doctrine should be sub­
jected to critical analysis and if found to be ap­
plicable to this case should be overruled------------  36
A. The problem with which Plessy v. Ferguson

dealt is fundamentally different from the prob­
lem presented here _________________________  36

B. This is not an appropriate case for the appli­
cation of the doctrine of stare decisis------------  39

III—If this Court considers Plessy v. Ferguson ap­
plicable here, that case should now be reexamined 
and overruled__________________________________  44
A. In Plessy v. Ferguson the Court did not prop­

erly construe the intent of the framers of tlxe 
Fourteexxth Amendment ____________________  44
1. The Court improperly construed the Four­

teenth Amendment as incorporating a doc­
trine antecedent to its passage and a doc­
trine which the Fourteenth Amendment had 
repudiated ---------------------------------------------  44

2. The framers of the Fourteenth Amendment
and of the contemporaneous civil rights 
statutes expressly rejected the constitu­
tional validity of the “ sepai’ate but equal”  
doctrine _________________________________  46

Conclusion __________________________________________ 53

Appendix A  ________________________________________  55

Appendix B ----------------------    56

PAGE



I l l

Table of Cases

Bain Peanut Co. v. Pinson, 282 U. S. 499 ____________  16
Baumgartner v. United States, 322 TJ. S. 665 __________  18
Berea College v. Kentucky, 211 U. S. 45_______________ 40
Board of Tax Commissioners v. Jackson, 283 U. S. 527- 16
Bob-Lo Excursion Co. v. Michigan, 333 U. S. 2 8 ______  37
Bridges v. California, 314 U. S. 252 __________________ 35
Buchanan v. Warley, 245 U. S. 6 0 _______________ 13, 24, 35

Cantwell v. Connecticut, 310 U. S. 296_________________ 35
Church of the Holy Trinity v. United States, 143 U. S.

457_____________________ _________________________  46
Clark v. Kansas City, 176 U. S. 114__________________ 16
Continental Baking Co. v. Woodring, 286 U. S. 352 __13,16
Connolly v. Union Sewer Pipe Co., 184 U. S. 540 _____ 15
Cory v. Carter, 48 Ind. 337 __________________________  44
Cummings v. Board of Education, 175 U. S. 528______36, 39
Dawson v. Lee, 83 Ky. 4 9 ____________________________  44
Dominion Hotel v. Arizona, 249 U. S. 265____________ 13,16

Fisher v. Hurst, 333 U. S. 147________________________  43

PAGE

Gong Lum v. Kice, 275 U. S. 78___________________36,41,42
Great Atlantic & Pacific Tea Co. v. Grosjean, 301 U. S.

412 _____________________________________________13,16
Groessart v. Cleary, 335 U. S. 464__________________ 13,17

Hague v. C. I. O., 307 U. S. 496_______________________  18
Hamilton v. Board of Regents, 293 U. S. 245__________  40
Hartzel v. United States, 322 IT. S. 68Q________________  18
Henderson v. United States, Oct. Term 1949, No. 25____ 37
Hirabayashi v. United States, 320 U. S. 8 1 ____13, 31, 32, 34

Illinois ex rel. McCollum v. Board of Education, 333 
U. S. 203 ________________________________________  21

Korematsu v. United States, 323 U. S. 214________ 31, 33, 34
Kotch v. Board of River Port Pilot Commissioners, 330 

U. S. 552 _______________________________________ 13,17



IV
PAGE

Lehew v. Brummell, 103 Mo. 546--------------------------------  44
Lovell v. Griffin, 303 U. S. 444-------------------------------------  48
Marsh v. Alabama, 326 U. S. 501---------------------------------- 30
Maxwell v. Bugbee, 250 TJ. S. 525------------------------- 13,15,16
Mayflower Farms v. Ten Eyck, 297 II. S. 266-------------- 14,17
Metropolitan Casualty Insurance Co. v. Brownell, 294

U. S. 580 ________________________________________  16
Missouri ex rel. Gaines v. Canada, 305 U. S. 337— 36, 42, 54 
Morgan v. Virginia, 328 U. S. 373------------------------------ 35, 37

Nixon v. Herndon, 273 IT. S. 536---------------------------------- 32
Oklahoma Natural Gas Co. v. Bussell, 216 U. S. 290 ----  2
Oyama v. California, 332 TJ. S. 633 -----------------------------  33

Patsone v. Pennsylvania, 232 U. S. 138----------------------  16
People v. Gallagher, 93 N. Y. 438 -----------------------------  44
Plessy v. Ferguson, 163 U. S. 537 ------------ 36, 37, 39, 42, 43,

44, 45,46,48, 50, 53
Puget Sound Power & Light Co. v. Seattle, 291 U. S.

619 ______________________________________________ 16
Quaker City Cab Co. v. Pennsylvania, 277 TJ. S. 389— 14,17 
Queenside Hills Co. v. Saxl, 328 U. S. 8 0 -------------------13,16
Boberts v. Boston, 5 Cush. (Mass.) 198 (1849)------44, 45, 50
Schneider v. State, 308 U. S. 147--------------------------------  18
Schneiderman v. United States, 320 U. S. 118--------------  18
Scott v. Sandford, 19 How. 393 --------------------------------34, 45
Shelley v. Kraemer, 334 U. S. 1 ---------------------- 13,15, 33, 35
Sipuel v. Board of Begents, 332 U. S. 631 ------------ 22, 43, 54
Skinner v. Oklahoma, 316 TJ. S. 535 ------------------------- 14,17
Smith v. Cahoon, 283 U. S. 553 --------------------------------14,17
Southern Bailway Co. v. Greene, 216 U. S. 400------14,15,17
State, Games v. McCann, 21 Ohio St. 210--------------- 44, 50
Steele v. Louisville & N. B. Co., 323 U. S. 192------------13, 32
Strauder v. West Virginia, 100 U. S. 303 ------------ 15, 34, 45
Sweatt v. Painter, et al., October Term, 1949, No. 44.___23,46
Takahashi v. Fish & Game Commission, 334 U. S. 410 33
Thornhill v. Alabama, 310 U. S. 8 8 ---------------------------  35
Truax v. Baich, 239 TJ. S. 3 3 ----------------------------------- 14,17



V

Tunstall v. Brotherhood of Locomotive Firemen & 
Enginemen, 323 IT. S. 210 -----------------------------------  33

United States v. American Trucking Assn., 310 U. S.
534 ______________________________________________  46

United States v. Carotene Products Co., 304 U. S. 144 30
Ward v. Flood, 48 Cal. 36 __________________________  44
West Virginia State Board of Education v. Barnette,

319 U. S. 624 ____________________________________  30
Whitney v. California, 274 U. S. 357 -------------- ----------- 18,35

Statutes

70 Oklahoma Statutes, 1941, Sections 455, 456, 457 ------7,10
Title 28, United States Code, Sec. 2281 ----------------------  2
United States Code, Title 8, Secs. 41, 4 3 -------------------10,11

Other Authorities

American Jurisprudence, Volume 47—Schools, Sec. 6— 19 
American Teachers Assn., The Black & White of Re­

jections for Military Service (1944) ----------------------  23
Baruch, Glass House of Prejudice (1946) _ _ --------------- 28
Bond, Education of the Negro in the American Social

Order, 3 (1934) _________________ ________________  26
Bunche, Education in Black and White, 5 Journal of 

Negro Education 351 (1936) --------------------    26
Clark, Negro Children, Educational Research Bulletin

(1923)___________________________   23
Cooper, The Frustrations of Being a Member of a 

Minority Group: What Hoes It Do to the Individual 
and to His Relationships With Other Peoplef 29
Mental Hygiene 189 (1945) -----------------------------------  26

Cong. Globe, 39th Cong., 1st Sess. (1865)--------------------- 49
Cong. Grlobe, 39th Cong., 1st Sess. (1866)______________ 47
Cong. Grlobe, 42nd Cong., 2nd Sess. (1872)----------------- 45, 50
Cong. Globe, 43rd Cong., 1st Sess. (1874)-------- 20,45,49, 50
Cong. Rec., 43rd Cong., 1st Sess. (1874)---------------------51, 53

PAGE



VI

Deutscher and Chein, The Psychological Effects of En­
forced Segregation: A Survey of Social Science
Opinion, 26 Journal of Psychology 259 (1948)---------  26

Dollard, Caste and Color in a Southern Town (1937)__ 26
Douglas, Stare Decisis, 49 Col. L. Eev. 735 (1949)_____ 39
Education for Freedom, Inc., A Symposium, of Radio 

Broadcasts on Education in a Democracy (1943)___ 19
Fairman & Morrison, Does the Fourteenth Amendment 

Incorporate the Bill of Rights?, 2 Stanford L. Eev.
5 (1949) ________________________________________  48

Faris, The Nature of Human Nature (1937)__________  25
Flack, The Adoption of the Fourteenth Amendment

(1908) _______________________________________    47
Frankfurter, Some Reflections on the Reading of Stat­

utes, 47 Col. L. Eev. 527 (1947)___________________ 54
Frazier, The Negro in the United States (1949)______25, 30
Gallagher, American Caste and the Negro College 

(1938) ___________________________________________ 28
Hamilton & Braden, The Special Competence of the

Supreme Court, 50 Yale L. J. 1319 (1941)__________  30
Henderson, The Plight of the Private College and 

What to do About It, The Educational Eecord
(October, 1949)   18

Henrich, The Psychology of Suppressed People (1937) 26
James, The Philosophy of William James, 128 (1925)__ 28
Johnson, Patterns of Segregation, II, Behavioral Re­

sponse of Negroes to Segregation and Discrimina­
tion (1943) _____________________________________ 25,26

Klineberg, Negro Intelligence and Selective Migration
(1935) _____________ ..._____________________________  23

Klineberg, Race Differences (1935) __________________ 23
LaFarge, The Race Question and the Negro (1945)____ 28
Lasker, Race Attitudes in Children (1949)___________  25
Loescher, The Protestant Church and the Negro (1948) 28
Long, Psychogenic Hazards of Segregated Education 

of Negroes, 4 The Journal of Negro Education 343 
(1935) _________________________________________ 25,26

PAGE



V l l

Lusky, Minority Rights and the Public Interest, 52 Yale 
L. J. 1 (1942) ____________________________________  17

Mannheim, K., Diagnosis of Our Times (1944)_______  20
Mangum, Jr., The Legal Status of the Negro (1947)___ 26
McLean, Psychodynamic Factors in Racial Relations,

244 Annals of the American Academy of Political
and Social Science, 159, 161 (March, 1946)________  26

McWilliams, Race Discrimination and the Law, 9
Science and Society No. 1 (1945)__________________ 26

Montague, Man’s Most Dangerous Myth—The Fallacy
of Race (1945) ___________________________________  23

Morgan, Horace Mann, His Ideas and Ideals (1936)___ 19
Moton, What the Negro Thinks (1929)_______________25,26
Myrdal, An American Dilemma (1944) __________ 25, 26, 27
Park, The Basis of Prejudice, The American Negro, the

Annals, Yol. 140 _________________________________  25
Peterson & Lanier, Studies in the Comparative Abili­

ties of Whites and Negroes, Mental Measurement 
Monograph (1929) _______________________________ 23

Report of the President’s Committee on Civil Rights,
To Secure These Rights (1947) ________________  26

Report of the President’s Commission on Higher Edu­
cation, Higher Education for American Democracy,
Vol. 1 (1947) ___________________________________ 21,26

Report of National Committee on Segregation in the 
Nation’s Capital, Segregation in Washington (Nov.,
1948) _____------_____---------------------------------------------------- 28

Rose, America Divided: Minority Group Relations in 
the United States (1948) _________________________  23

Smythe, The Concept of “ Jim Crow” , 27 Social Forces 
48 (1948) _______________________________________  27

Testimony of R. Redfield in Sweatt v. Painter, October
Term, 1949, No. 4 4 _______________________________ 23

Thompson, Mis-Education for Americans, 36 Survey
Graphic, 119 (1947) ______________________________ 28

Thompson, Separate But Not Equal, The Sweatt Case,
33 Southwest Review 105 (1948) ________________  30

PAGE



vm

Tussman & ten Broek, The Equal Protection of the 
Laws, 37 Cal. L. Rev. 341 (1949) ____________ 16, 30, 46

Ware, The Role of the Schools in Education for Racial 
Understanding, 12 Journal of Negro Education 421 
(1944) ___________________________________________25, 28

Young, America’s Minority Peoples (1932) __________  26

Notes

36 Col. L. Rev. 283 (1936) ___________________________  30
40 Col. L. Rev. 531 (1940) _______ -___________________  30
49 Col. L. Rev. 629 (1949) __________________________  46
46 Mick. L. Rev. 639 (1948) _________________________  29
41 Yale L. J. 1051 (1931) ___________________________  30
56 Yale L. J. 1051 (1947) ___________________________  26
Editorial Note, 19 Journal of Negro Education 4 (1949) 30

PAGE



IN  THE

Supreme Court of the United States
October Term, 1949

No. 34

G. W . M cL aurin ,
Appellant,

vs.

Oklahoma S tate R egents for H igher 
E ducation, B oard of R egents of U ni­
versity of Oklahoma, et al.

appeal from the  district court of the  united states
FOR T H E  W ESTE R N  DISTRICT OF O K L A H O M A

BRIEF FOR APPELLANT.

Opinion Below.

No opinion was filed by the court below. Findings of 
Fact and Conclusions of Law were filed at the close of the 
first hearing (R. 31-34). Journal entry of Judgment for 
this hearing was filed October 6, 1948 (R. 34-35). At the 
close of the hearing on appellant’s motion to modify the 
order and judgment (R. 35-38), Findings of Fact and Con­
clusions of Lawr and Judgment were entered on November 
22, 1948 (R. 39-44).



2

Statement of Jurisdiction.

The Supreme Court of the United States has jurisdic­
tion to review this cause on appeal under the provisions 
of Title 28, United States Code, Section 1253, this being an 
appeal from an order denying, after notice and hearing, an 
injunction in a civil action required by an act of Congress 
to be heard and determined by a district court of three 
judges for the reason that in this action plaintiff-appellant 
sought to enjoin the enforcement of statutes of the State 
of Oklahoma,1 and to enjoin the enforcement of an order 
made by an administrative board acting under state 
statutes.2

The District Court for the Wetsern District of Okla­
homa sitting as a specially constituted three-judge court 
rendered a final judgment in this cause sustaining* the 
validity of an order made by an administrative board acting 
under statutes of the State of Oklahoma after the validity 
of state statutes and the order had been placed in issue by 
the appellant on the ground that they were repugnant to 
the Constitution of the United States.

Application for appeal was presented on January 18, 
1949 (E. 45) and was allowed on the same day (E. 108). 
Probable jurisdiction was noted by this Court on November 
7, 1949 (E. 111).

1 Title 28, United States Code, Section 2281.
2 Title 28, United States Code, Section 2281; See: Oklahoma 

Natural Gas Co. v. Russell, 261 U. S. 290.



3

The State Statutes and Administrative Order, the 
Validity of Which Is Involved.

The Oklahoma Statutes, the validity of which are in­
volved are Sections 455, 456 and 457 of Title 70 of the Okla­
homa Statutes (1941) which provide in part as follows:

70 0. S. 1941, Section 455, makes it a misdemeanor, 
punishable by a fine of not less than $100 nor more than 
$500 for

“ any person, corporation or association of persons 
to maintain or operate any college, school or insti­
tution of this State where persons of both white and 
colored races are received as pupils for instruction, ’ ’

and provides that each day same is to be maintained or 
operated “ shall be deemed a separate offense” .

70 0. S. 1941, Section 456, makes it a misdemeanor, 
punishable by a fine of not less than $10 nor more than $50 
for any instructor to teach

“ in any school, college or institution where members 
of the white race and colored race are received and 
enrolled as pupils for instruction,”

and provides that each day such an instructor shall continue 
to so teach “ shall he considered a separate offense” .

70 O. S. 1941, Section 457, makes it a misdemeanor 
punishable by a fine of not less than $5 nor more than $20 
for

“ any white person to attend any school, college or 
institution, where colored persons are received as 
pupils for instruction,”

and provides that each day such a person so attends “ shall 
be deemed a distinct and separate offense” ,



4

After the hearing and judgment in this case the Okla­
homa Legislature repealed these statutes and enacted simi­
lar statutes which contained the following proviso:

“  * * * that the provisions of this Section shall not 
apply to programs of instruction leading to a par­
ticular degree given at State owned or operated col­
leges or institutions of higher education of this State 
established for and/or used by the white race, where 
such programs of instruction leading to a particular 
degree are not given at colleges or institutions of 
higher education of this State established for and/or 
used by the colored race; provided further, that said 
programs of instruction leading to a particular de­
gree shall be given at such colleges or institutions of 
higher education upon a segregated basis. Segre­
gated basis is defined in this Act as classroom in­
struction given in separate classrooms, or at sepa­
rate times.”

These statutes are set out in full in the Appendix.

At the hearing for a preliminary injunction the Court 
held that “ insofar as any statute or law of the State of 
Oklahoma denies or deprives this plaintiff admission to the 
University of Oklahoma for the purpose of pursuing the 
courses of study he seeks, it is unconstitutional and unen­
forceable” . The Court, however, refused to issue prelim­
inary injunction (E. 34).3

3 “ The court is of the opinion that insofar as any statute or law 
of the State of Oklahoma denies or deprives this plaintiff admission 
to the University of Oklahoma for the purpose of pursuing the course 
of study he seeks, it is unconstitutional and unenforceable. This does 
not mean, however, that the segregation laws of Oklahoma are in­
capable of constitutional enforcement. W e simply hold that insofar 
as they are sought to be enforced in this particular case, they are 
inoperative”  (R . 33).



5

Order by Board of Regents of University of Oklahoma, 
a State Board, Acting Pursuant to State Statutes, the 

Validity of Which Is Involved.

Subsequent to the above order of the Court and the filing 
of a motion for further relief by the plaintiff, the defendant 
Board of Regents of the University of Oklahoma acting as a 
state board pursuant to the statutes of Oklahoma adopted 
an order which appears in the minutes of said board as 
follows:

‘ ‘ That the Board of Regents of the University of 
Oklahoma authorize and direct the President of the 
University, and the appropriate officials of the Uni­
versity, to grant the application for admission to the 
Graduate College of G. W. McLaurin in time for Mr. 
McLaurin to enrol at the beginning of the term, 
under such rules and regulations as to segregation 
as the President of the University shall consider to 
afford to Mr. G. W. McLaurin substantially equal 
educational opportunities as are afforded to other 
persons seeking the same education in the Graduate 
College, and that the President of the University 
promulgate such regulations”  (R. 97).

In refusing to enjoin the enforcement of this order the 
Court held as a matter of Jaw that: “ The Oklahoma stat­
utes held unenforceable in the previous order of this Court 
have not been stripped of their validity to express the public 
policy of the State in respect to matters of social con­
cern * * * ”  (R. 42).

The Court refused to enjoin the enforcement of either 
the statutes or the order, dismissed the complaint of the 
plaintiff, and rendered judgment for the defendants (R. 
43-44).



6

Statement of the Case.

On the 5th day of August, 1948, appellant filed in the 
United States District Court for the Western District of 
Oklahoma a complaint required to he heard and determined 
by a three-judge court as provided by the then existing 
Section 266 of the Judicial Code seeking a preliminary and 
permanent injunction against the Oklahoma State Regents 
for Higher Education, the Board of Regents of the Uni­
versity of Oklahoma and the administrative officers of the 
University of Oklahoma enjoining them from enforcing 
Sections 455-457 of the Oklahoma statutes of 1941 under 
which the plaintiff and other qualified Negro applicants 
were excluded from admission to the courses of study of­
fered only at the Graduate School of the University of 
Oklahoma.

The complaint alleged that the appellant, G. W. Mc- 
Laurin, was qualified in all respects for admission to the 
Graduate School of the University of Oklahoma but was 
denied admission solely because of race or color pursuant 
to the statutes of the State of Oklahoma and the orders of 
the Board of Regents of the University of Oklahoma acting 
pursuant to said statutes. Motion was made for a pre­
liminary injunction. A  hearing was held on the motion 
for preliminary injunction upon an agreed statement of 
facts in which all of the material facts were admitted and 
agreed upon. It was admitted that appellant, McLaurin, 
was qualified in all respects other than race or color for 
admission to the University of Oklahoma and that the 
courses he desired were offered by the State of Oklahoma 
only at the University of Oklahoma (R. 20-21).

On the 6th day of October, 1948, the three-judge court 
filed a journal entry which said in part: “ it is ordered and



7

decreed that insofar as Sections 455, 456 and 457, 70 0. S. 
1941, are sought to be applied and enforced in this par­
ticular case, they are unconstitutional and unenforceable” . 
The Court, however, refrained from granting any injunc­
tive relief but retained jurisdiction of the subject matter for 
entering any further orders as might be deemed proper 
(E. 34-35).

On the 7th day of October, 1948, appellant filed a motion 
for further relief alleging that despite the prior ruling of 
the court, appellant had again been denied admission to the 
Graduate School of the University of Oklahoma and re­
quested that the court enter an order requiring appellees 
to admit appellant to the “ graduate school of the Univer­
sity of Oklahoma for the purpose of taking courses leading 
to a doctor’s degree in education, subject only to the same 
rules and regulations which apply to other students in said 
school”  (E. 38).

At the hearing on the motion for further relief it ap­
peared that the appellant has been admitted to the Graduate 
School of the University of Oklahoma but on a segregated 
basis. At this hearing counsel for both parties agreed in 
open court as to the essential facts.4

Judge Murkah summed up the agreement as to essential 
facts as follows:

‘ ‘ Judge Murrah: The 13th of October admitted to 
the University of Oklahoma and to the courses which 
he sought to pursue in his application to the Uni­
versity proper officials on January 28, 1948, that he 
was admitted to the same classes that other students 
pursuing these courses, under the same instructors, 
and that he was assigned a permanent desk or chair

4 It has been the policy of the lower court to secure agreements 
between counsel rather than to use testimony insofar as possible 
(R. 53).



8

in an anteroom to title main classroom where other 
students were seated, that the Exhibits 1 to 5, which 
have been introduced into evidence, fairly represent 
the physical conditions under which he was admitted, 
and where he now sits and now pursues his course of 
study.

“ It is further admitted that he can from this 
position see the instructor and hear the lecture, that 
he can see all or most of his fellow students, and 
that he is not obstructed in listening to the lecture 
or pursuing his course, except under conditions 
which may be hereinafter discussed.

* * * * * *
“ Now it is further agreed that he is admitted to 

the library at the University of Oklahoma where all 
other students are admitted and on the same condi­
tions, except that he is assigned a permanent desk 
on the landing above the second floor of the library, 
and that he is required by the administrative 
rules to occupy this desk while using the library, 
and in so doing he is required to leave his desk, 
go to the librarian, I suppose, and get the books 
he wishes, take them to his desk and use them there, 
while other students pursuing the same courses and 
using this library, go into the library, select the 
books they wish and take them home or any place 
that they may wish to pursue their studies”  (E. 56).5

It was admitted that Negroes constitute the only group 
which is segregated in the University of Oklahoma (E. 63- 
64) and McLaurin testified as to the conditions of segre­
gation to which he had been subjected and the effect of such 
segregation upon him as a student (E. 58-63).

5 The exhibits referred to appear in the Record on pages 92-96.
The order of the Board of Regents of the University of Oklahoma 

of October 10, 1948 which required the maintenance of rules and 
regulations as to segregation in the admission of the appellant appears 
in the Record at page 97.



9

The issue in the second hearing was clearly set forth in 
the motion for further relief (E. 35-38) and during the hear­
ing (E, 50).

On the 22d day of November, 1948, the three-judge court 
issued Findings of Fact, Conclusions of Law and Journal 
Entry. In the Conclusions of Law, the Court held:

1. That the United States Constitution “ does not au­
thorize us to obliterate social or racial distinctions which 
the State has traditionally recognized as a basis for classi­
fication for purposes of education and other public min­
istrations. The Fourteenth Amendment does not abolish 
distinctions based upon race or color, nor was it intended 
to enforce social equality between classes and races” .

2. “ It is the duty of this court to honor the public policy 
of the State in matters relating to its internal social affairs 
quite as much as is our duty to vindicate the supreme law 
of the land.”

3. “ The Oklahoma statutes held unenforceable in the 
previous order of this court have not been stripped of their 
vitality to express the public policy of the State in respect 
to matters of social concern.”

4. “ We conclude therefore that the classification, based 
upon racial distinctions, as recognized and enforced by the 
regulations of the University of Oklahoma, rests upon a 
reasonable basis, having its foundation in the public policy 
of the State, and does not therefore operate to deprive this 
plaintiff of the equal protection of the laws”  (E. 41-42).

The journal entry denied the relief prayed for, dis­
missed the complaint and entered judgment for the appel­
lees (E. 44).

Subsequent to the hearing and judgment in the lower 
court, appellant, McLaurin, was permitted to go into the



10

regular classroom and to sit in a section surrounded by a 
rail on which there was a large sign stating “ Reserved for 
Colored” . At the beginning of the last semester, February, 
1950, the rail and sign were removed. Appellant is now per­
mitted to eat in the students’ cafeteria but is required to 
sit at a segregated table. He is permitted to use the main 
library but only on a segregated basis.

Question Presented.

The Statement as to jurisdiction heretofore filed in this 
Court presented the following question:

Whether in providing graduate education in a state 
university the state may exclude a Negro student from the 
classroom and require him to participate in classes through 
an open doorway maintaining a spacial separation from 
other students?

Errors Relied Upon.

The District Court erred:

1. In refusing to enjoin the defendants as state officers 
from enforcing Sections 455, 456 and 457 of the Oklahoma 
Statutes of 1941 upon the ground that the enforcement of 
said statutes violated the equal protection and due process 
clauses of the Fourteenth Amendment to the Constitution 
of the United States and Title 8, Sections 41 and 43 of the 
United States Code.

2. In refusing to enjoin the defendants as state officers 
from enforcing the order of defendant Board of Regents of 
the University of Oklahoma requiring the segregation of 
plaintiff from all other students of the University of Okla­
homa solely because of race or color upon the ground that 
said order is a violation of the equal protection and due



11

process clauses of the Fourteenth Amendment to the Consti­
tution of the United States and Title 8, Sections 41 and 43 
of the United States Code.

3. In ruling as a matter of law that the claim of the 
plaintiff to an education in a state institution on a non- 
segregated basis without distinction as to race or color was 
not a constitutional right but a mere matter of public policy 
of the State in regard to its internal social affairs.

4. In ruling as a matter of law that the plaintiff’s right 
to public education without racial distinction, segregation 
or ostracism by the State of Oklahoma was a matter of the 
internal social affairs of the State of Oklahoma controlled 
solely by the public policy of the State and was not a right 
protected by the Constitution of the United States.

5. In ruling as a matter of law that the Oklahoma 
Statutes previously held by the Court to be unconstitutional 
and unenforceable could nevertheless be used as a consti­
tutional basis for subsequent orders of the defendants to 
segregate plaintiff from all other students and thereby 
ostracize him solely because of race and color.

6. In ruling as a matter of law that state statutes previ­
ously declared unconstitutional as applied to plaintiff by 
state officers could be applied as a source of public policy 
to authorize the segregation of plaintiff from all other 
students of the University of Oklahoma solely because of 
race or color.

7. In ruling as a matter of law that the order requiring 
the segregation of plaintiff from the other students solely 
because of race or color rested “ upon a reasonable basis 
and did not deprive the plaintiff of the equal protection of 
the laws or the right to liberty as guaranteed by the Con­
stitution ’ ’.



12

8. In ruling as a matter of law, in the absence of any 
evidence whatsoever to establish reasonableness of the 
classification, that the order requiring the segregation of 
the plaintiff from all other students solely because of race 
or color was a classification which rested upon a reason­
able basis and did not violate the due process or equal pro­
tection clauses of the Fourteenth Amendment to the Consti­
tution of the United States.

9. In ruling as a matter of law that the Fourteenth 
Amendment does not prohibit the State of Oklahoma from 
making racial distinctions among its citizens in the per­
formance of its governmental function of providing public 
education at the graduate school level.

Summary of Argument.

The first hearing in this case involved the validity of 
the statutes of the State of Oklahoma which required com­
plete exclusion of appellant from the University of Okla­
homa solely because of race and color. The second hearing 
involved the enforcement of an order of the Board of 
Regents of the University of Oklahoma requiring the segre­
gation of appellant within the University of Oklahoma. 
Both of the hearings involved the refusal of the appellees to 
permit the appellant to attend classes at the University of 
Oklahoma subject only to the same rules and regulations 
which apply to other students similarly situated.

In this case the obvious purpose of racial segregation in 
public education is made clearer than in any other case 
presented to this Court. To admit appellant and then single 
him out solely because of his race and to require him to sit 
outside the regular classroom could be for no purpose other 
than to humiliate and degrade him—to place a badge of 
inferiority upon him. His admission destroyed whatever



13

reason or policy which, might have theretofore existed for 
requiring white and Negro students to attend separate 
institutions.

This case involves the efforts of the appellant, a Negro, 
to obtain graduate education at the University of Oklahoma 
subject only to the same rules and regulations which apply 
to other students in said school”  (R. 38). He has been 
denied that right because of his race and color; “ simply 
that, and nothing more” . This the Constitution forbids. 
“ Distinctions between citizens solely because of their an­
cestry are by their very nature odious to a free people 
whose institutions are founded upon the doctrine of equal­
ity. For that reason, legislative classification or discrimi­
nation based on race alone has often been held to be a denial 
of equal protection.” '6 “ Discriminations based on race 
alone are obviously irrelevant and invidious” ,7 and there­
fore arbitrary and unreasonable. Their imposition upon 
any citizen by any agency of government is reconcilable 
neither with due process of law8 nor with the equal pro­
tection of the laws.9

This Court, while recognizing the right of the state to 
make reasonable classifications, has consistently held that 
such classifications must be based upon some real or sub­
stantial difference in relation to a legitimate legislative 
end which has pertinence to the statute’s objective.10 The

6 Hirabayashi v. United States, 320 U. S. 81, 100.
7 Steele v. Louisville & Nashville Railroad Co., 323 U. S. 192, 

203.
8 Buchanan v. Warley, 245 U. S. 60, 82.
9 Shelley v. Kraemer, 334 U. S. 1.
10 Dominion Hotel v. Arizona, 249 U. S. 265 ; Maxwell v. Bugbee, 

350 U. S. 525; Continental Baking Co. v. Woodring, 286 U. S. 352; 
Great Atlantic Tea Co. v. Grojean, 301 U. S. 412; Queenside Hills Co. 
v. Saxl, 328 U. S. 80; Kotch v. Board River Port Pilot Commissioner, 
330 U. S. 552; Groessart v. Cleary, 335 U. S. 464,



14

State of Oklahoma has shown neither a real nor substantial 
difference nor the pertinence of alleged racial differences 
to graduate education. Where alleged differences on which 
a classification is based do not in fact exist, or cannot be 
reasonably or rationally related to the legislative objec­
tives, the classification violates the equal protection clause.11

However, the lower court in this case considered that it 
was under a duty “ to honor the public policy of the state 
in matters relating to its internal social affairs quite as 
much as it is our duty to vindicate the supreme law of the 
land”  (E. 42). The relief was then denied on the ground 
that: “ We conclude therefore that the classification, based 
upon racial distinctions, as recognized and enforced by the 
regulations of the University of Oklahoma, rests upon a 
reasonable basis, having its foundation in the public policy 
of the State and does not therefore operate to deprive this 
plaintiff of the equal protection of the laws”  (E. 42).

This decision is in direct conflict with the prior decisions 
of this Court with respect to the power of a state to classify 
in general as well as its prohibitions against governmentally 
imposed racial classifications.

The appellees rely solely upon the asserted validity of 
the separate but equal doctrine which they have extended to 
graduate education. This doctrine should be subjected to 
critical analysis and if found to be applicable to graduate 
education should be rejected by this Court as being in direct 
conflict with the intent and purpose of the Fourteenth 
Amendment and other decisions of this Court.

11 Quaker City Cab Co v. Pennsylvania, 277 U. S. 389; Southern 
R. R. Co. v. Greene, 216 U  .S. 400; Truax v. Raich, 239 U. S. 33; 
Smith v. Cahoon, 283 U. S. 553; Mayflower Farms v. Ten Eyck, 297 
U. S. 266; Skinner v. Oklahoma, 316 U. S. 535.



15

A R G U M E N T .

I.

The exclusion of appellant from the regular class­
room and the requirement of spacial segregation solely 
because of race and color is in violation of the Four­
teenth Amendment.

The appellant herein having been admitted to the 
Graduate School of the University of Oklahoma, pursuant 
to an order of the court below, was thereupon compelled 
by the appellees to physically separate himself from the 
other students in his classroom solely because of his race 
and color. He was further required by appellees to physi­
cally segregate himself in the use of library facilities and 
in the students’ cafeteria solely because he is a colored per­
son of Negro ancestry. The appellees, in compelling appel­
lant to take advantage of a course of study and physical 
facilities in perceptible isolation, solely because of his race 
and color, have effected a classification, the basis of which 
is clearly repugnant to constitutional guarantees of equal 
protection.

The basic purpose and intent of the equal protection 
clause of the Fourteenth Amendment was to prohibit a state 
from denying to its Negro citizens any rights given by the 
state to its white citizens. Strauder v. West Virginia, 100 
U. 8. 303; Shelley v. Kraemer, 334 U. S. 1. Another pur­
pose was to insure that all persons similarly situated would 
receive like treatment and that no special groups or classes 
be singled out for favorable or discriminatory treatment, 
Southern Railway v. Greene, 216 U. S. 400; Connolly v. 
Union Sewer Pipe Co., 184 U. S. 540; Maxwell v. Bugbee, 
250 U. 8. 525.



16

The secondary purpose is broader in scope than the 
first since it is not primarily concerned with racial distinc­
tions but with discrimination generally. In determining 
whether state legislation subserves the second purpose, this 
Court has not prohibited all, hut only certain types of legis­
lative distinctions. On the other hand, racial classifications 
for governmental action are subjected to a more rigid test. 
The racial classification in this case meets neither test.

A. The limitation on a state’s right to classify for  legisla­
tive purposes.
This Court in interpreting the scope of equal protection 

has long recognized and approved the necessity for legisla­
tive classification as an indispensable concomitant of orderly 
government. Bain Peanut Co. v. Pinson, 282 U. S. 499. 
It has upheld reasonable classification even though in­
cidental discrimination was an inevitable result. Metropoli­
tan Ins. Co. v. Brownell, 294 U. S. 580 ; Puget Sound Power 
and Light Co. v. Seattle, 291 U. S. 619; Board of Tax Com­
missioners v. Jackson, 283 U. S. 527; Patsone v. Penn, 232 
U. S. 138; Clark v. Kansas City, 176 U. S. 114. But this 
Court has not, even in approving such classification, given 
sanction without examination and scrutiny.12 This Court 
has, in accordance with this procedure applied the familiar 
general test of constitutionality applicable to these cases, 
i. e., a test which requires that the legislative classification 
he found to be based upon some real or substantial differ­
ences between classes which are relevant to the legitimate 
legislative end which is the object of the statute. Dominion 
Hotel v. Arizona, 249 U. S. 265; Maxwell v. Bughee, supra; 
Continental Baking Co. v. Woodring, 286 U. S. 353; Great 
Atlantic Tea Co. v. Grojean, 301 IT. S. 412; Queenside Hills

12 Tussman & ten Broek, The Equal Protection of the Laws, 37 
Calif. Law Review 341 (1949).



17

Co. v. Saxl, 328 U. S. 80; Kotch v. Board River Port Pilot 
Commissioner, 330 U. S. 552; Groessart v. Cleary, 335 IT. S. 
464. If the differences are not reasonably perceptible, or 
are not relevant to the legislative end, the classification vio­
lates that which the equal protection clause secures. Quaker 
City Cab. Co. v. Penn, 277 IT. S. 389; Southern RR. Co. v. 
Greene, 216 IT. S. 400; Truax v. Raich, 239 IT. S. 33; Smith 
v. CaJioon, 283 IT. S. 553; Mayflower Farms v. Ten Eyck, 
297 IT. S. 266; Skinner v. Oklahoma, 316 IT. S. 535.

This formula has been consistently followed by this 
Court without deviation since the adoption of the Four­
teenth Amendment as the most effective method of giving 
life and substance to the equal protection clause while at 
the same time leaving to the states freedom to deal with 
problems of everyday government.

In this case Oklahoma has singled out one group of its 
citizens to be segregated from all other citizens in the en­
joyment of governmental facilities. This is not a case of 
voluntary separation on the part of either the Negro or 
non-Negro students, it is governmentally imposed segrega­
tion. Such a classification must either meet the test set out 
above or be declared unconstitutional. To test the con­
stitutionality of this classification we must examine the 
objective Oklahoma is attempting to accomplish in offering 
educational facilities for graduate education and determine 
what relevance, if any, race, ancestry or skin pigmentation 
may have to such objective.

The Objectives of Public Education.
As a way of life, we are dedicated to a system which 

places reliance upon rational persuasion rather than upon 
force and coercion.18 It is our belief that given a choice, 13

13 For a discussion of differences between ours and a totalitarian 
system and discussion of national interest in elimination of racial 
discrimination see: Lusky, Minority Rights and the Public Interest, 
52 Yale Law Journal 1 (1942).



18

our citizenry will choose the rational and wise. Lovell v. 
Griffin, 303 U. S. 444; Schneider v. State, 308 U. S. 147; 
Hague v. C. 1. 0., 307 U. S. 496. Mr. Justice Brandeis, in a 
concurring opinion in Whitney v. California, 274 U. S. 357, 
375, stated this basic philosophy succinctly when he said:

“ Those who won our independence believed that 
the final end of the State was to make men free to 
develop their faculties; that in its government the 
deliberative forces should prevail over the arbi­
trary. ’ ’ 14

For that reason, our society is dedicated to the fullest 
personal and political freedom of the individual. In order 
to make certain that our citizens are equipped to make 
rational decisions and thus maintain and preserve our dem­
ocratic institutions, it is vital that through the medium of 
education their individual skills, values, belief in the basic 
tenets of democracy be developed. So important has this 
become that education is no longer left solely to the parent 
or to a few philanthropists.15 It has become one of the

14 Cf. Schneiderman v. United States, 320 U. S. 118, 120 (1943):
“ While it is our high duty to carry out the will of Congress, 

in the performance of this duty we should have a jealous regard 
for the rights of petitioner. W e should let our judgment be guided 
so far as the law permits by the spirit of freedom and tolerance 
in which our nation was founded, and by the desire to secure the 
blessings of liberty in thought and action to all those upon whom 
the right of American citizenship has been conferred by statute, 
as well as to the native born. And we certainly should presume 
that Congress was motivated by these lofty principles.”

See also: Baumgartner v. U. S., 322 U. S. 665; Hartzel v. U. S., 
322 U. S. 680.

15 “ The Plight of the Private Colleges and What to do About 
it”  by Algo D. Henderson, October, 1949 issue of The Educational 
Record, published by the American Council on Education.



19

highest functions of state government.16 Thus, the forty- 
eight states have almost uniformly undertaken the func­
tion of providing educational benefits at a minimum cost 
to all in order that they might endeavor to develop the 
fullest intellectual and moral qualities and to thereby in­
sure the most effective participation in the responsibility 
and duties of citizenship.

Horace Mann described the purpose of education in a 
democratic society as follows: 17

‘ ‘ Education must be universal # * # The theory 
of our government is—not that all men, however 
unfit, shall be voters—but that every man, by the 
power of reason and the sense of duty, shall become 
fit to be a voter. Education must bring the practice 
as nearly as possible to the theory. As the children 
now are, so will the sovereigns soon be. How can we 
expect the fabric of the government to stand, if vic­
ious materials are daily wrought into its framework. 
Education must prepare our citizens to become mu­
nicipal officers, intelligent jurors, honest witnesses, 
legislators, or competent judges of legislation—in 
fine, to fill all the manifold relations of life. For 
this end, it must be universal. ’ ’

Mortimer J. Adler, professor of law at the University 
of Chicago, states the purpose in these terms.18

‘ ‘ Liberal education is developed only when a cur­
riculum can be devised which is the same for all men,

16 At common law, the parent’s control over his child extended 
to education of the child. The parent’s common law rights and duties 
in this regard “ have been generally supplemented by constitutional 
and statutory provisions, and it is now recognized that education is a 
function of the government” . 47 Am. Jur. Schools, Section 6, page 
299.

17 Horace Mann— His Ideas and Ideals by Joy Elmer Morgan, 
Natl. Home Foundation, Washington, D. C., 1936, page 98.

18 Education for Freedom, a Series of Radio Lectures, sponsored 
and published by the Education for Freedom, Inc., New York: 1943. 
Other lectures by Mark Van Doren and Dr. Robert M. Hutchins, 
among others, also included pertinent remarks on this subject.



20

and should be given to all men, because it consists 
in those moral and intellectual disciplines which lib­
erate men by cultivating their specially rational 
power to judge freely and to exercise free will. * * *

‘ ‘ * * * Only when all young men and women are 
prepared by liberal education for the responsibili­
ties of citizenship, and the obligations of the moral 
and intellectual life, will the world community come 
into existence. Without it world peace is impos­
sible. ’ ’

Education is not only a component part of true dem­
ocratic living, but is the very essence of and medium 
through which democracy can be effected. The intent of 
the framers of the Fourteenth Amendment was indicated 
in the 43rd Congress in 1874 by these words: “  * * * that 
all classes should have the equal protection of American 
law and be protected in their inalienable rights, those rights 
which grow out of the very nature of society, and the or­
ganic law of this country.”  19 In 1943, an eminent soci­
ologist and economist, Dr. Karl Mannheim, then Professor 
of Economics at London School of Economics, said:

“ Finally, there is a move towards a true democ­
racy arising from dissatisfaction with the infinite­
simal contribution guaranteed by universal suffrage, 
a democracy which through careful decentralization 
of functions allots a creative social task to everyone. 
The same fundamental democratization claims for 
everyone a share in real education, one which no 
longer seeks primarily to satisfy the craving for so­
cial distinction, but enables us adequately to under­
stand the pattern of life in which we are called upon 
to live and act. ’ ’ 19 20

19 Congressional Globe, Forty-third Congress, May 22, 1874.
20 Mannheim, Karl, “ Diagnosis of Our Time” , Oxford University 

Press, 1944, page 177.



21

Finally, in 1947, seventy-three years after the 43rd Con­
gress, the President’s Committee on Higher Education took 
an unequivocal position against segregation in education. 
In terms of a definition of the role played by education the 
Report said:

“  * * * the role of education in a democratic society 
is at once to insure equal liberty and equal oppor­
tunity to differing individuals and groups, and to 
enable the citizens to understand, appraise, and re­
direct forces, men, and events as these tend to 
strengthen or to weaken their liberties.” 21

Mr. Justice F rankfurter stated in Illinois ex rel. Mc­
Collum v. Board of Education, 333 U. S. 203, 216, 217:

“ The sharp confinement of the public schools to 
secular education was a recognition of the need of a 
democratic society to educate its children, insofar as 
the State undertook to do so, in an atmosphere free 
from pressures in a realm in which pressures are 
most resisted and where conflicts are most easily and 
most bitterly engendered. Designed to serve as per­
haps the most powerful agency for promoting co­
hesion among a heterogeneous democratic people, the 
public school must keep scrupulously free from en­
tanglement in the strife of sects.”

It is, therefore, evident that the objective of public edu­
cation is to equip our citizens with information and skills in 
order that they may effectively participate in our demo­
cratic processes. Public education is no longer a privilege of 
the few. It is no longer a minor function of government. 
It is one of the most important of governmental functions.

21 Report of the President’s Commission on Higher Education, 
Higher Education for American Democracy, Govt. Printing Office, 
Washington, 1947, Vol. I, page 5.



22

Neither Race, Ancestry Nor Skin Pigmentation of 
Students Has Any Pertinence to the Objectives 

of Public Education.

The requirement of spacial segregation in education in 
Oklahoma is based solely on race or color, ‘ ‘ simply that 
and nothing more.”  Solely because appellant is a Negro 
he has been denied rights enjoyed as a matter of course by 
all other qualified students.22 Appellant’s individual rights 
are lost in the racial group classification.

Appellees have so far made no effort to show any rele­
vancy between compulsory racial segregation and the law­
ful objectives of public education. On the other hand, it is 
evident that the State of Oklahoma, while professing equal­
ity within a segregated system, has in fact consistently 
maintained the objective of inequality insofar as Negroes 
are concerned. Prior to 1948, Negroes -were completely ex­
cluded from graduate and professional training.23 After 
the decision in the Sipuel case the appellees continued the 
exclusion of Negroes from graduate and professional 
schools. The conditions under which appellant was admitted 
after the first order in this case was a continuation of the 
same policy of inequality.

The practice of racial segregation has sometimes been 
rationalized by the claim that there are inherent differences 
between the races. This essential racist view assumes that 
minorities belong to inferior races, and that racial inter­
mixture results in the degeneracy of the superior race. 
After an exhaustive study of all scientific data referring to

22 Counsel for all parties agreed that: “ the only group of citizens 
attending the University of Oklahoma who are segregated are 
Negroes’’ (R . 63).

23 Sipuel v. Board of Regents, et al., 332 U. S. 631.



23

the intellectual capacity of different racial groups, an ex­
pert witness testified in another pending case to this effect:

“ The conclusion then, is that differences in intel­
lectual capacity or inability to learn have not been 
shown to exist as between Negroes and whites, and 
further, that the results make it very probable that 
if such differences are later shown, to exist, they will 
not prove to be significant for any educational policy 
or practice. ’ ’ 24

One of the leading sociologists in the field of race rela­
tions has pointed out: “ there is not one shred of scientific 
evidence for the belief that some races are biologically su­
perior to others, even though large numbers of efforts have 
been made to find such evidence.” 25 There is no rational 
basis, no factual justification for segregation in education 
on the grounds of race or color. The racist premise is com­
pletely invalid, and no act of segregation based upon it can 
be upheld as reasonable.26

24 Testimony of Dr. Robert Redfield in Sweatt v. Painter, et al., 
October Term, 1949, No. 44.

25 Rose, Arnold M., America Divided: Minority Group Relations 
In the United States, published by Knopf, New York City, 1948.

28 Otto Klineberg, Race Differences, page 343, 1935; Montague, 
M. F. A., Man’s Most Dangerous Myth— The Fallacy of Race, 
Columbia University Press, New York, 1945, page 188, “ The Black 
and White of Rejections for Military Service” , American Teachers 
Association, August, 1944, page 29; Otto Klineberg, Negro Intelli­
gence and Selective Migration, New York, 1935; J. Peterson & L. H. 
Lanier, Studies in the Comparative Abilities of Whites and Negroes, 
Mental Measurement Monograph, 1929; W . W . Clark, Negro Chil­
dren, Educational Research Bulletin, Los Angeles, 1923.



24

Compulsory Racial Segregation in Public Educa­
tion Is an Arbitrary and Unlawful Classification 
W ithin the General Limitations Upon Right o f 

States to Classify Its Citizens.

This Court had no hesitancy in striking down compul­
sory residential segregation predicated upon racial the­
ories :

“ It is the purpose of such enactments, and it is 
frankly avowed it will be their ultimate effect, to 
require by law at least in residential districts, the 
compulsory separation of the races on account of 
color. Such action is said to he essential to the 
maintenance of the purity of the races, although it 
is to be noted in the ordinance under consideration 
that the employment of colored servants in white 
families is permitted, and nearby residences of col­
ored persons not coming within the blocks, as defined 
in the ordinance, are not prohibited.” 27

State ordained segregation having no rational founda­
tion is a particularly invidious policy which needlessly 
penalizes Negroes, demoralizes others, and tends to destroy 
democratic institutions. I f the racial factor has no scien­
tific basis, then the ills suffered as a result of racial segre­
gation in graduate education are doubly harmful. We have 
pointed out above the purposes and objectives of educa­
tion. In light of those objectives, segregation is an abortive 
factor to the full realization of the objective of education.

First, segregation prevents both the Negro and white 
student from obtaining a full knowledge and understanding 
of the group from which he is separated, thereby infringing 
upon the inherent rights of an enlightened citizen. It has 
been scientifically established that no child at birth pos­

27Buchanan v. Warley, 245 U. S. 60, 81; see also: Shelley v. 
Kraemer, supra.



25

sesses either an instinct or even a propensity towards 
feelings of prejudice or superiority. These attitudes, when 
and if they do appear, are but reflections of the attitudes 
and institutional ideas evidenced by the adults about him.28 
The very act of segregation tends to crystallize and per­
petuate group isolation, and serves, therefore, as a breeding 
ground for unhealthy attitudes.29

Secondly, a feeling of distrust for the minority group 
is fostered in the community at large, a psychological 
atmosphere which is most unfavorable to the acquisition of 
a proper education. Still another result of segregation in 
education with respect to the general community is that it 
accentuates imagined differences between Negroes and 
others.30

The uncontradicted testimony of the appellant in this 
case shows the effect of racial segregation upon him in his 
effort to obtain an education (R. 58-63). As a matter of 
fact, the effect on McLaurin is the inevitable result of com­
pulsory segregation and there is a corresponding harmful

28 Robert E. Park, The Basis of Prejudice, The American Negro, 
the Annals, Vol. 140, pages 11-20 as cited in The Negro in the United 
States by E. Franklin Frazier, McMillan Co., New York, 1949, page 
668; Elsworth Faris, The chapter on “ The Natural History of Race 
Prejudice” , from The Nature of Human Nature, New York, 1937, 
page 354.

29 Bruno Lasker, Race Attitudes in Children, New York, 1949, 
page 48; Caroline F. Ware, “ The Role of the Schools in Education 
for Racial Understanding” , 12 Journal of Negro Education No. 3, 
pp. 421-431 (1944 ); Robert R. Moton, What the Negro Thinks 
(Garden City, N. Y., 1929), page 13; Howard Hale Long, “ Psycho­
genic Hazards of Segregated Education of Negroes” , The Journal 
of Negro Education, Vol. IV, No. 3, July, 1935, page 343; see also: 
Charles S. Johnson, Patterns of Segregation (1943), Pt. II, “ Be­
havioral Response of Negroes to Segregation and Discrimination” .

30 As stated by Gunnar Myrdal in An American Dilemma, New 
York, 1944, Vol. 1, page 625: “ But they are isolated from the main 
body of whites, and mutual ignorance helps reinforce segregative 
attitudes and other forms of race prejudice.”



26

effect on the non-segregated group and society in general. 
Deutsclier and Cliein, The Psychological Effect of Enforced 
Segregation: A Survey of Social Science Opinion, 26 Journ. 
of Psychology 259 (1948); Cooper, The Frustrations of 
Being a Member of a Minority Group: What Does It Do 
to the Individual and to His Relationships With Other 
Peoplef 29 Mental Hygiene 189 (1945); McLean, Psycho­
dynamic Factors in Racial Relations, 244 Annals of the 
American Academy of Political and Social Science 159, 161 
(March, 1946).

Qualified educators, social scientists, and other experts 
have uniformly expressed their realization of the fact that 
‘ ‘ separate ’ ’ is irreconciliable with ‘ 4 equality ’ ’ .S1 There can 
be no equality since the very fact of segregation establishes 
a feeling of humiliation and deprivation to the group con­
sidered to be inferior.32

Probably the most irrevocable and deleterious effect of 
segregation upon the minority group is that it imposes a

81 Gunnar Myrdal, An American Dilemma, New York, 1944, Vol. 
1, page 580; Charles S. Johnson, Patterns of Segregation, New York, 
1943, page 4, 318; Charles S. Mangum, Jr., The Legal Status of the 
Negro, Chapel Hill, 1940; Report of the President’s Committee on 
Civil Rights, “ To Secure These Rights” , Government Printing Office, 
Washington, 1947; Report of the President’s Commission on Higher 
Education, “ Higher Education for American Democracy” , Vol. I, 
Government Printing Office, Washington, 1947. Max Deutscher and 
Isidor Chein (with the assistance of Natalie Sadigur), “ The Psycho­
logical Effects of Enforced Segregation: A  Survey of Social Science 
Opinion” . The Journal of Psychology, 1948, 26, 259-287.

82 Carey McWilliams, “ Race Discrimination and the Law” , 
Science and Society, Vol. IX , No. 1, 1945: 56 Yale Law, 1947, pages 
1051-1052, 1059; Bond, “ Education of the Negro in the American 
Social Order” , 1934, page 385; Moton, “ What the Negro Thinks” , 
1922, page 99; Bunche, “ Education in Black and White” , 5 Journal 
of Negro Education, 1936, page 351; Long, “ Some Psycho-Genic 
Hazards of Segregated Education of Negroes” , 4 Journal of Negro 
Education, 1935, pages 336-343; Henrich, “ The Psychology of Sup­
pressed People” , 1937, page 52; Dollard, “ Caste and Color in a 
Southern Town” , 1937, pages 269, 441; Young, “ America’s Minority 
Peoples” , 1932, page 585.



27

badge of inferiority upon the segregated group.33 34 This 
badge of inferior status is recognized not only by the 
minority group, but by society at large. As Myrdal has 
pointed out:

“ Segregation and discrimination have had ma­
terial and moral effects on whites, too. Booker T. 
Washington’s famous remark that the white man 
could not hold the Negro in the gutter without getting 
in there himself, has been corroborated by many 
white southern and northern observers. Throughout 
this book, we have been forced to notice the low 
economic, political, legal and moral standards of 
Southern whites-—kept low because of obsession with 
the Negro problem. Even the ambition of Southern 
whites is stifled partly because, without rising far, 
it is so easy to remain ‘ superior’ to the held-down 
Negroes.”  84

A  definitive study of the scientific works of contempo­
rary sociologists, historians and anthropologists conclu­
sively document the proposition that the intent and result 
of segregation are the establishment of an inferiority status. 
And a necessary corollary to the establishment of this value

33 Hugh H. Smythe, “ The Concept of ‘Jim Crow’ ” , Social Forces,
Vol. 27, No. 1, Oct., 1948, page 48: “ ‘Jim Crow’ as used in a
sociological context thus indicates for a specific social group the 
Negro’s awareness of his badge of inequality which he learns through 
the operation of a ‘Jim Crow’ concept in his every day living. This 
pattern of existence has become so much a part of the nation’s social 
structure that it has become synonymous with the words ‘segrega­
tion’ and ‘discrimination’, and at times when ‘Jim Crow’ is indexed 
some authors have indexed it as a cross reference for these terms.”

34 Gunnar Myrdal, op. cit., Vol. I, page 644.



28

judgment is the deprivation suffered by both the minority 
and majority groups.35

35 Baruch, Glass House of Prejudice, William Morrow and Co., 
1946, pages 66-76, Gallagher, Buell G., American Caste and the 
Negro College, Columbia University Press, 1938, page 94: 
“ Wherever possible, the caste line is to keep all Negroes below the 
level of the lowest whites. This is the first and deepest meaning 
of ‘separate but equal’ ” . Page 105: “ Not the least important aspect 
of the caste system is its results in seriously malconditioning the 
individuals whose psychological growth is strongly affected by a 
caste divided society. These influences are not limited to the Negro 
caste. They stamp themselves upon the dominant caste as well” ; 
LaFarge, John, The Race Question and the Negro, New York, 
Longmans Green & Co., 1945, page 159: “ Segregation, as a com­
pulsory measure based on race, imputes essential inferiority to the 
segregated group. Segregation, since it creates a ghetto, brings in 
the majority of instances, for the segregated group, a diminished de­
gree of participation in those matters which are ordinary human 
rights, such as proper housing, educational facilities, police protection, 
legal justice, employment, * * * Hence it works objective injustice. 
So normal is the result for the individual that the result is rightly 
termed inevitable for the group at large” ; James, “ The Philosophy 
of William James” , 1925, page 128: “ Properly speaking, a man has 
as many social selves as there are individuals who recognize him and 
carry an image of him in their mind. To wound any one of these 
images is to wound him” ; Loescher, Frank S., “ The Protestant 
Church and the Negro” , Association Press, 1948. “ (Segregation) 
is, in itself, an implication of inferiority, an inferiority not only of 
status but of essence, of being” ; Thompson, “ Mis-education for 
Americans” , Survey Graphic, Vol. 36, Jan., 1947, page 119: “ Edu­
cation for segregation, if it is to be effective, must perpetuate beliefs 
which define the Negro’s status as inferior, which emphasize super­
ficial differences, or which in any way suggest that the Negro is a 
lower order of being and therefore should not be expected to be 
treated like a white person” . Page 120: “ Mis-education for segre­
gation has deleterious effects on both Negroes and whites. It re­
quires mental and emotional gymnastics on both sides to adjust (or 
attempt to adjust) to the many logical and ethical contradictions of 
segregation. The situation is crippling to the personalities of both 
Negro and white Americans” ; Ware, “ The Role of the Schools in 
Education for Racial Understanding” , 12 Journal of Negro Educa­
tion, 421 (1944), page 424: “ A  segregated school system presents 
almost insuperable obstacles. In such a system the social situations 
may be made worse by vicious attitudes, or uplifted by sympathetic 
ones. But the sheer fact of segregation stands as an eternal reminder 
to every white child, every day, that the Negro or Mexican children 
are being kept away from his school” ; Segregation in Washington, 
A  Report of the National Committee on Segregation in the Nation’s 
Capital, November, 1948, pages 76, 77.



29

There is no compensatory value to society as a result 
of the ills suffered from segregation. As we have pointed 
out above, segregation in education has produced delete­
rious effects upon both the majority and minority groups. 
We have similarly found that the only logical premise upon 
which segregation could be based—i. e., the existence of 
differences in intellectual ability as between the races—has 
been completely discredited by scientific studies. It would 
appear then, that the only remaining rationale for segre­
gation is that although it might be admitted that racial 
segregation has no validity, the prevailing customs and 
mores require that segregation be broken down in a grad­
ual manner.36 However, all available data which refers to 
instances where segregation did exist but was subsequently 
broken down, controvert this assumption.

The experiences of states with a racial and social policy 
similar to that of Oklahoma demonstrate that this policy 
may be abandoned at least at the graduate and professional 
level to the advantage of all concerned. The University of 
Maryland has admitted Negroes into its law school since 
1935. Negroes have freely attended the University of 
West Virginia since 1939. The University of Arkansas 
in 1947 admitted a Negro to its law school on a segregated 
basis. Before the term had ended, it had abandoned the 
segregation, and now Negroes are attending its law school 
and School of Medicine just like any other students. The 
University of Delaware was opened to Negroes, as is the 
University of Kentucky. In September, 1949, a Negro was 
admitted into the University of Texas School of Medicine. 
In all instances there was considerable initial resistance by 
governmental officials to the abandonment of segregation.

36 See Note 46 Mich. L. Rev. 639 (1948).



30

Yet in each instance the experiment has been beneficial and 
successful.37 38

In the absence of any scientific basis for enforced racial 
segregation, there can be no relationship between alleged 
racial differences and the lawful objectives of public edu­
cation. Applying the recognized standard for measuring 
the constitutionality of general classifications it is clear 
that the classification in this case fails to meet that standard.

B. Classifications by governmental agencies based solely 
on race or ancestry are particularly odious to our prin­
ciples o f equality.

The compulsory racial segregation in this ease not only 
fails to meet the test as to general state classifications but it 
is also in direct conflict with the special test as to racial 
and religions classifications. As to those matters which 
are not usually the subject of state regulation because spe­
cifically prohibited by the federal constitution, this Court 
has required the application of another and more stringent 
examination into constitutionality, i. e., there must be a 
conclusive showing of actual differences and pertinence 
must be justified.88 United States v. Carotene Products Co.,

37 Editorial Note, Journal of Negro Education, December, 1949, 
pages 5-6. See also: Charles H. Thompson, Separate But Not Equal, 
The Sweatt Case, 33 Southwest Review, 105, 111 (1948). Frazier, 
The History of the Negro in the United States (1950), chap. 17.

38 It is sometimes said that where the governmental action is based 
upon race or color, there is presumption of unconstitutionality. See 
Tussman and ten Broek, op. cit. supra footnote 12; Note, 36 Col. L. 
Rev. 283 (1936 ); 40 Col. L. Rev. 531 (1940); 41 Yale L. J. (1931); 
Hamilton & Broden, The Special Competence of the Supreme Court, 
50 Yale L. J. 1319; 1349-1357 (1941). This appears to be similar to 
the Court’s placement of freedom of speech, press, assembly and re­
ligion in a preferred position. See, e. g., Marsh v. Alabama, 326 
U. S. 501, 508; W est Virginia State Board of Education v. Barnette, 
319 U. S. 624, 739.



31

304 U. S. 144, note 4; Hirabayashi v. United States, 320 
U. S. 81. This Court has allowed invasion of this latter 
area only when an overwhelming public necessity was 
clearly shown to exist. Korematsu v. United States, 323 
U. S. 214; Hirabayashi v. United States, supra. In the 
absence of an overwhelming public necessity, this Court 
has never allowed governmental regulation of this consti­
tutionally prefererd area and has nullified all such unrea­
sonable and irrational classifications.

The end sought herein by the Oklahoma legislature and 
the appellee is the higher education of its citizens. It is now 
well established that a state in providing higher educa­
tion for its citizenry must afford equal protection and equal 
opportunity to all under constraint of the equal protection 
clause of the Fourteenth Amendment. Therefore what, rel­
evancy race has to the objective sought and what are the 
real differences between appellant and his classmates which 
justify the classification here made are the questions to 
which this Court would ordinarily seek answers. In this 
instance, however, it is entirely unnecessary to seek an 
answer, for the appellees admit that appellant’s race is 
the only difference between appellant and his classmates 
and they have never contended that race has any relevancy 
to higher education. The usual inquiry into these matters is 
thus eliminated and the question involved is reduced to an 
inquiry as to whether race or color alone may be made the 
basis of a classification by the state.

This Court has said that race or color may not, in view 
of the equal protection clause of the Fourteenth Amend­
ment, be made the basis of classification by the state. 
Distinctions among citizens under eontraint of state power 
which are based solely upon the race or color of such citi­
zens have incurred such constitutional odium that they are



32

presumptively void. This Court has, in recent decisions, 
vigorously disparaged and censored them.

In Hirabayashi v. United States, supra, Mr, Justice 
S tone speaking for the Court said at 100:

“  Distinctions between citizens solely because of 
their ancestry are by their very nature odius to a 
free people whose institutions are founded upon the 
doctrine of equality. For that reason, legislative 
classification or discrimination based on race alone 
has often been held to be a denial of equal pro­
tection. ’ ’

Mr. Justice M orphy concurring at page 110, said:

“ Distinctions based on color and ancestry are 
utterly inconsistent with our traditions and ideals.”

In Nixon v. Herndon, 273 U. S. 536, Mr. Justice H olmes 
stated for the Court at 541:

“ States may do a good deal of classifying that 
it is difficult to believe rational, but there are limits, 
and it is * # * clear * # # that color cannot be made 
the basis of a statutory classification.”

In Steele v. L. N. B. R. Co., 323 U. S. 192, Mr. Justice 
M urphy concurring with the majority which had condemned 
the use of Congressional authority to discriminate against 
Negro workers said at 209:

“ Nothing can destroy the fact that the accident 
of birth has been used as the basis to abuse indi­
vidual rights by an organization purporting to act 
in conformity with its Congressional mandate. # *
A  sound democracy cannot allow such discrimination 
to go unchallenged. Racism is far too virulent today 
to permit the slightest refusal, in the light of a 
Constitution that abhors it, to expose and con­
demn # # *.”



33

In Korematsu v. United States, 323 U. S. 214, Mr. Jus­
tice B lack said at 216:

u * * * a| [ legal restrictions which curtail the civil 
rights of a single racial group are immediately sus­
pect. That is not to say that all such restrictions 
are unconstitutional. It is to say that courts must 
subject them to the most rigid scrutiny. Pressing 
public necessity may sometimes justify the existence 
of such restrictions; racial antagonism never can.” 89

In Oyama v. California, 332 U. S. 633, Justices B lack 
and D ouglas concurring with the majority added at 649:

“  * * * we have recently pledged ourselves to co­
operate with the United Nations to ‘ promote * * # 
universal respect for, and observance of, human 
rights and fundamental freedoms for all without dis­
tinction as to race, sex, language, or religion’ . How 
can this nation be faithful to this international pledge 
if state law’s which bar land ownership and occupancy 
by aliens on account of race are permitted to be 
enforced ?’ ’

In Takahashi v. Fish, and Game Commission, 334 U. S. 
410, the Court said via Mr. Justice Black at 418:

“ It does not follow, as California seems to argue, 
that because the United States regulates immigration 
and naturalization in part on the basis of race and 
color classifications, a state can adopt one or more 
of the same classifications to prevent lawfully ad­
mitted aliens within its borders from earning a liv­
ing in the same way that other state inhabitants earn 
their living.”

89 See: Shelley v. Kraemer, supra; Tunstall v. Brotherhood of 
Locomotive Firemen and Enginemen, 323 U. S. 210. Although not 
directly in point, are also links in the development of this principle.



34

The only occasions on which this Court has sustained 
such classifications have been those occasions on which it 
has been conclusively demonstrated that an overwhelming 
public necessity compelled it. Hirabayashi v. United States, 
supra, Korematsu v. United States, supra. No overwhelm­
ing public necessity is claimed here.40

While Chief Justice T an ey , in the case of Dred Scott v. 
Sandford, 60 U. S. 393, 407, decreed that Negroes had “ for 
more than a century before been regarded as beings of an 
inferior order; and altogether unfit to associate with the 
white race, either in social or political relations; and so far 
inferior, that they had no rights which the white man was 
bound to respect” ; this Court after the adoption of the 
Fourteenth Amendment held that the Amendment was 
framed and adopted to protect the colored race, which had 
long been regarded as an “ inferior and subject race”  
against all state action designed “ to perpetuate the distinc­
tions that had before existed” . Strauder v. West Vir­
ginia, 100 IJ. S. 303, 306.

The separation of McLaurin from the other students can 
have but one purpose—to give notice to McLaurin, his fel­
low students and the world at large, that the State of Okla­
homa has decreed that McLaurin belongs to an “ inferior 
order”  and is “ altogether unfit to associate with the white 
race”  in their mutual efforts to secure an education. This 
position while in complete accord with the doctrine of the 
Dred Scott case is in direct opposition to the purpose and 
intent of the Fourteenth Amendment as set forth in 
Strauder v. West Virginia and more recent cases cited 
above.

40 The Court below sustained the classification relying solely upon 
some vague, undefined notions of state public policy.



35

C. The public policy o f Oklahom a o f requiring racial seg­
regation in graduate public education is in direct con ­
flict with the federally  protected right o f appellant to 
he free from  state imposed racial distinctions.
The decision o f the lower court has a very narrow basis: 

“ We conclude, therefore, that the classification, based upon 
racial distinctions, as recognized and enforced by the regu­
lations of the University of Oklahoma, rests upon a rea­
sonable basis, having its foundation in the public policy of 
the State, and does not therefore operate to deprive this 
plaintiff of the equal protection of the laws”  (E. 42).

The preceding sections have discussed the absence of ra­
tional basis for the classification in this case. As to the 
question of state public policy in regard to peace and order, 
this Court has consistently held that this is no justification 
for the denial of constitutional rights to which one would 
otherwise be entitled. In Buchanan v. Warley, 245 U. S. 60, 
the State of Kentucky attempted to justify its ordinance 
segregating whites and Negroes into separate blocks on the 
ground that unless this was done riots and disorder might 
result. That argument this Court dismissed with this state­
ment :

“ It is urged that this proposed segregation will 
promote the public peace by preventing race con­
flicts. Desirable as this is, and important as is the 
preservation of the public peace, this aim cannot be 
accomplished by laws or ordinances which deny rights 
created or protected by the Federal Constitution,”  
page 81.

In Shelley v. Kraemer, 334 U. S. 1, this Court reaffirmed 
this principle that the preservation of public peace and 
good order does not suffice to excuse unconstitutional gov­
ernmental action which effects a classification or distinction 
based upon race. See also: Bridges v. California, 314 U. S. 
252; Cantwell v. Connecticut, 310 U. S. 296; Morgan v. Vir­
ginia, 328 U. S. 373; Thornhill v. Alabama, 210 U. S. 88; 
Whitney v. California, supra.



36

II.

The separate but equal doctrine should be subjected 
to critical analysis and if found to be applicable to this 
case should be overruled.

The District Court held that:
“ The Constitution from which this court derives 

its jurisdiction does not authorize us to obliterate 
social or racial distinctions which the State has tra­
ditionally recognized as a basis for classification for 
purposes of education and other public ministrations. 
The Fourteenth Amendment does not abolish dis­
tinctions based upon race or color, nor was it in­
tended to enforce social equality between classes and 
races. * # * It is only when snch distinctions are 
made the basis for discrimination and unequal treat­
ment before the law that the Fourteenth Amendment 
intervenes. * * * It is the duty of this court to honor 
the public policy of the State in matters relating 
to its internal social affairs quite as much as it is our 
duty to vindicate the supreme law of the land”  (E. 
42)]

The cases cited by the Court in support of the separate 
but equal doctrine were: Plessy v. Ferguson, 163 U. S. 537; 
Cummings v. United States, 175 U. S. 528; Gong Lum v. 
Rice, 275 U. S. 78; Missouri ex rel. Gaines v. Canada, 305 
U. S. 337.

A . The problem  with which Plessy v. Ferguson dealt is 
fundam entally different from  the problem  presented 
here.

In Plessy v. Ferguson, a Louisiana statute, which re­
quired the separation of the races in railroad coach accom­
modations, was held to be a proper exercise of state au­



37

thority under the Fourteenth Amendment as long as the 
facilities provided for Negroes were equal to those provided 
for whites. It is true that the Court cited several state 
cases condoning racial segregation in educational facilities, 
but the decision itself was necessarily limited to the problem 
before it.

Equality of transportational facilities presents an en­
tirely different question from that of equality of educa­
tional opportunities, which is involved here. In transpor­
tation, the primary considerations are the type of comfort 
and convenience, courtesy, fare, speed, time of arrival and 
departure. In determining whether equality of opportunity 
has been offered in education, one must consider the learn­
ing process, the types of offerings provided, the necessity 
of education to the development of citizenship, loyalties 
and devotion to democratic beliefs, and the development of 
an individual as a personal and national asset; in short the 
whole function of education in a democracy. This neces­
sarily requires consideration of psychological, sociological 
and spiritual factors in addition to pure physical measure­
ments. Moreover, even as to transportation the applica­
tion of Plessy v. Ferguson, has been considerably curtailed 
by Morgan v. Virginia, supra, and Bob-Lo Excursion Co. v. 
Michigan, 333 U. S. 28.41

It is to be remembered that Plessy v. Ferguson came to 
this Court for review of a judgment on a demurrer and that 
the sole question for consideration was a bare legal proposi­

41 W e believe that the Court's decision in Plessy v. Ferguson, even 
as limited to the subject matter of transportation, was wrongly de­
cided. The pernicious effect of that decision on transportation, as 
has been stated above, has been considerably curtailed by virtue of 
Morgan v. Virginia, supra, and Bob-Lo Excursion Co. v. Michigan, 
supra. It is our hope that decision by this Court in Henderson v. 
United States, October Term, 1949, now pending, will overrule 
that case.



38

tion as to the extent of state power. When that case was 
decided, this Court had had no experience in dealing with 
the type of question raised, and might have believed in all 
sincerity that assimilation of the Negro in American cul­
ture was impossible and that the experiment which the 
Fourteenth Amendment was launching was liable to end in 
tragic failure. Experience has since demonstrated that such 
fears were groundless, and that individual development is 
determined by opportunity and not by race. In addition, 
the Court had before it no facts to show that racial discrim­
ination would be the natural result of the application of the 
‘ ‘ separate but equal ’ ’ formula, and it presumed that no -such 
discriminatory effect would result. There this Court said 
at 550, 551:

“  * * * so far, then, as a conflict with the 14th Amend­
ment is concerned, the case reduces itself to the 
question whether the statute of Louisiana is a reason­
able regulation, and with respect to this there must 
necessarily be a large discretion on the part of the 
legislature. In determining the question of reason­
ableness it is at liberty to act with reference to the 
established usages, customs, and the traditions of 
the people, and with a view to the promotion of their 
comfort, and the preservation of the public peace 
and good order. Gauged by this standard, we can­
not say that a law which authorizes or even requires 
the separation of the two races in public conveyances 
is unreasonable or more obnoxious to the 14th 
Amendment than the Acts of Congress requiring 
separate schools for colored children in the District 
of Columbia, the constitutionality of which does not 
seem to have been questioned, or the corresponding 
acts of state legislature.”

The record in this case, on the other hand, conclusively 
shows that the separation of the races in Oklahoma with re­
gard to the availability of graduate education produces in­



39

equality of treatment and of opportunity, and that such 
inequality is a direct concomitant of this separation. What­
ever may be the view as to the correctness o f the decision 
in Plessy v. Ferguson, there are such intrinsic differences 
between the question dealt with there and those now being 
raised that it will be of little assistance in determining 
whether the equal protection clause prohibits compulsory 
racial segregation in graduate education.

B. This is not an appropriate case for the application of
the doctrine of stare decisis.

If Plessy v. Ferguson, and the other cases relied upon 
by the Court below are definitive of the law presently ap­
plicable to this case, we would urge that they be discarded 
in light of changed conditions and of the necessity for dif­
ferent rules to meet new conditions. As Mr. Justice D ouglas 
said:

“ The fact is that security can only be achieved 
through constant change, through the wise discard­
ing of old ideas that have outlived their usefulness, 
and through the adapting of others to current 
facts.” 42

We submit, however, that the cases cited by respondents 
do not govern this case, and that, therefore, we do not need 
to meet the problem of the impact of the doctrine of stare 
decisis on the question raised herein.

A  discussion of the cases will demonstrate, we believe, 
that they have no pertinence to the instant problem.

Cummings v. Board of Education supra, is cited as 
adopting the “ separate but equal”  formula in the face of

42 Douglas, Stare Decisis, 49 Col. L. Rev. 735 (1949).



40

the fact that the Court specifically states that this problem 
was not before it.

“ It was said at the argument that the vice in the 
common-school system of Georgia was the require­
ment that the white and colored children of the state 
be educated in separate schools. But we need not 
consider that question in this case. No such issue was 
made in the pleadings. Indeed, the plaintiffs dis­
tinctly state that they have no objection to the tax 
in question so far as levied for the support of pri­
mary, intermediate, and grammar schools, in the 
management of which the rule as to the separation of 
the races is enforced. We must dispose of the case 
as it is presented by the record.” 43

Berea College v. Kentucky, 211U. S. 45, involved the con­
stitutionality of a Kentucky statute which made it unlawful 
for any person or corporation to operate a school or college 
which received both Negroes and whites as pupils. This 
Court upheld the constitutionality of the statute but was 
careful to state that it was not considering the validity of 
its application to individuals.44 Therefore, at most, this 
decision stands for the proposition that a state may prohibit 
corporations from accepting students of both races in the 
same institution without doing violence to the guarantees 
of the Fourteenth Amendment.45 Even this proposition 
now seems questionable. At any rate, there is little doubt 
that a state may exercise greater power in its dealings with 
corporations than it is permitted in its relations with an 
individual.

43 At pages 543, 544.
44 At page 54.
45 In granting privileges and advantages which it may withhold, 

a state may exact conditions which it, under ordinary circumstances, 
would be unable to do. See: Hamilton v. Board of Reaents, 293 
U. S. 245.



41

In Gong Lum v. Rice, supra, a Chinese child was denied 
admission to a white school in her district. She contended 
that the state could not group her with Negroes for the pur­
pose of determining what public school she could attend. 
No question was raised concerning the power of the state 
to adopt and enforce a racial classification.4® The gravamen 
of plaintiff’s contention was that if whites had the au­
thority and the power to protect themselves against contact 
with Negroes, who were regarded as peculiar and inferior 
beings, then Chinese should have the same prilivege.

“ Of course it is the white, or Caucasian race, that 
makes the laws and construes and enforces them. It 
thinks that in order to protect itself against the in­
fusion of the blood of other races its children must be 
kept in schools from which other races are excluded. 
The classification is made for the exclusive benefit of 
the law making race. * * *

“ If there is danger in the association [with Ne­
groes], it is a danger from which one race is entitled 
to protection just the same as another. The White 
race may not legally expose the Yellow race to a 
danger that the dominant race recognizes and, by 
the same laws, guards itself against # * * ” 46 47

“  * * * The White race protects itself against con­
ditions that would require social contact [with Ne­
groes]. This, as the Mississippi courts say, to pre­
serve the integrity of the Caucasian race. But has 
not the Chinese citizen the same right to protection 
that the Causasian citizen has? * * # Can we arro­
gate to ourselves the superior right to so organize the 
public school system as to protect our racial integ­
rity without regard to the interests or welfare of 
citizens of other races?” 48

46 Brief of Plaintiff-in-Error filed here at page 14 concedes this 
authority.

47 Id. at 9 and 10.
48 Id. at 13, 14.



42

“ It appears, too, from the discussions in the cases 
and by the note writers that the courts have taken 
cognizance of the fact that the [Negro] is not de­
sired as a social equal by he (sic) members of the 
White race, and, therefore, the White race has made 
its laws with a view to preventing such social contact 
as would have a tendency to foster social relations 
and social equality. But this same precaution, taken 
with respect to its own children, is omitted when it 
comes to dealing with the children of the other 
races.”  49

This Court felt that the question raised had been settled 
by Plessy v. Ferguson. In that we think it was in error. 
Mr. Chief Justice T aft was of the opinion, apparently, that 
once plaintiff conceded that the state could classify on the 
basis of race, which petitioner denies in this case, there was 
no basis for the argument that it could not classify Chinese 
and Negroes together for the purpose of receiving public 
educational advantages. At any rate, Gong Lum v. Rice, 
cannot be a precedent for the application of the Plessy v. 
Ferguson formula in the field of education when that ques­
tion was not before the Court.

In Missouri ex rel. Gaines v. Canada, supra, the question 
presented was whether the State of Missouri had denied to 
petitioner the equal protection of the laws in excluding him, 
because he was a Negro, from the only law school main­
tained by the state. That same question was initially pre­
sented to the court below in this case. Although the “ sepa­
rate but equal doctrine”  was mentioned, the Court only 
held that it was a denial of equal protection to provide edu- 48

48 Id. at 17.



43

cational advantages for whites and deny these advantages 
to Negroes. That decision is no authority for the con­
tention that the application of the “ separate but equal”  
doctrine to a state’s educational system complies with the 
requirements of the Fourteenth Amendment.

In Sipuel v. Board of Regents, supra, this Court decided 
that a state was under an obligation to afford to Negroes 
whatever educational advantages it offered whites and at 
the same time. In the argument here, counsel stated that 
the constitutionality of the state’s segregation laws was not 
an issue in the case. For that reason when an original writ 
of mandamus was sought in the same case, sub nom. Fisher 
v. Hurst, 333 U. 8.147, on the grounds that the setting up of 
a segregated school was a denial of equal protection, the 
Court refused to consider the question.

In none of the cases, therefore, has the “ separate but 
equal doctrine ’ ’ been in fact applied to determine the reach 
of the equal protection clause in the relationship of a state 
to the individual. Moreover, in none of these cases has the 
doctrine been reexamined. There are no precedents, there­
fore, to which this Court must give weight which hold that 
the “ separate but equal”  doctrine is a valid measure of 
the individual’s entitlement to equal treatment with respect 
to the educational advantages a state offers. Therefore, we 
are left only with Plessy v. Ferguson, which, as we have 
pointed out, did not involve educational facilities, as a 
precedent for the application of the “ separate but equal 
doctrine”  in determining the reach of state power under 
the limitations of the Fourteenth Amendment. And, it is 
submitted, that case is not applicable to this problem.



44

III.

If this Court considers P lessy  v. F ergu son  applicable 
here, that case should now be reexamined and over­
ruled.

We have set out in a preceding section of this brief the 
reasons for our contention that Plessy v. Ferguson is not 
pertinent to the issues herein raised, and that decision may 
be reached here without its being considered. However, if 
the Court should be of the opinion that decision here cannot 
be reached without disposing of Plessy v. Ferguson, then, 
we submit, Plessy v. Ferguson should be reexamined and 
overruled.

A . In Plessy v. Ferguson the Court did not properly construe 
the intent o f the fram ers o f the Fourteenth Amendment.

1. The Court improperly construed the Fourteenth Am end­
ment as incorporating a doctrine antecedent to its pas­
sage and a doctrine which the Fourteenth Amendment 
had repudiated.

In Plessy v. Ferguson the Court was required to inter­
pret the recently adopted Fourteenth Amendment. In find­
ing its intent and purpose a method was used which was 
both unusual and fallacious. A  series of state cases, but 
cbiefly Roberts v. Boston, 5 Cusb. (Mass.) 198, were cited 
as sources for reading the “ separate but equal”  formula 
into the Fourteenth Amendment.50 In that case, decided in

50 Other state cases cited include People v. Gallagher, 93 N. Y. 
438; Ward v. Flood, 48 Cal. 36; State, Games v. McCann, 21 Ohio 
St. 210; Lehew  v. Brummell, 103 Mo. 546; Cory v. Carter, 48 Ind. 
337; Dawson v. Lee, 83 Ky. 49. It is interesting to note that all 
these states have now abolished segregation in public schools with the 
exception of Kentucky. Even there, however, Negroes are attending 
the graduate and professional schools of the University of Kentucky.



45

1849, prior to the adoption of the Fourteenth Amendment, 
a Negro girl contended that Boston authorities could not 
require her to attend a segregated school.81 The Supreme 
Court of Massachusetts held that her exclusion from the 
regular school did not violate any of her rights under the 
state constitution, since the city had made provision for 
her education at a separate school equal to the school main­
tained for whites. This case is the basic source for the 
finding in Plessy v. Ferguson that the Fourteenth Amend­
ment condoned racial segregation on a “ separate but 
equal”  basis.

It should he remembered that when Roberts v. Boston, 
supra, was decided, it was believed that Negroes were in­
ferior sub-human beings who could never be equal to whites, 
and Mr. Chief Justice T axey  in Scott v. Sandford, 19 How. 
393, wrote that belief into the fundamental law.51 52

The Thirteenth, Fourteenth and Fifteenth Amendments 
repudiated the Bred Scott decision. These constitutional 
provisions were primarily intended to raise the Negro to 
a status equal to that of whites, to free and protect him 
from any stigma, degradation or discrimination which his 
race, color or previous condition of servitude might other­
wise invite. Strauder v. West Virginia, supra. Yet in 
interpreting one of the constitutional provisions defining 
this new status, the Plessy v. Ferguson Court looked for 
its intent and meaning in a pre-Fourteenth Amendment 
philosophy—a philosophy which the new Amendment spe­
cifically repudiated.53 Since these were new rights which had

51 Her attorney was Charles Sumner, later one of the persons 
chiefly responsible for drafting and steering through Congress the 
Thirteenth, Fourteenth and Fifteenth Amendments and Civil Rights 
Legislation passed thereunder.

52 Historians credit this decision as one of the causes of the Civil 
War. See: Frazier, op. cit. supra note 37.

53 See Cong. Globe, 42nd Cong., 2d Sess. 3261 (1872 ); Cong. 
Globe, 43rd Cong., 1st Sess. 4081, 4082, 4116 (1874).



46

been created, the intent of the framers of the Thirteenth, 
Fourteenth and Fifteenth Amendments should have been 
the primary sources for determining their meaning and 
purpose. Had this method been followed, modern scholars 
are of the opinion that the Court would necessarily have 
concluded that the “ separate but equal”  doctrine was di­
rectly contrary to objectives which the Fourteenth Amend­
ment was meant to accomplish.54

2. The framers of the Fourteenth Amendment and of the 
contemporaneous civil rights statutes expressly rejected  
the constitutional validity of the “ separate hut equal”  
doctrine.

This Court often recognizes the pertinence and value of 
an analysis of the intent of the framers of constitutional 
and statutory law in aid of their interpretation and 
application.55 * * 58

Accordingly, it is appropriate in reevaluating the “ sep­
arate but equal”  doctrine as enunciated in Plessy v. Fergu­
son to refer directly to the official statements of the men 
who were responsible for the drafting of the Fourteenth 
Amendment and the legislation passed shortly thereafter 
to implement it.

It became clear shortly after the ratification of the 
Thirteenth Amendment that it was too limited in scope to

54 The brief on the merits of the Committee of Law Teachers 
Against Segregation in Legal Education filed as amici curiae in the 
case of Sweatt v. Painter, October Term, 1949, No; 44, does a careful 
and comprehensive analysis of the question. It is their conclusion 
that the framers of the Fourteenth Amendment meant to prohibit 
segregation. Tussman & ten Broek, opt. cit. supra note 12, at 342,
et seq., indicate that they have reached the same conclusion. See 
also: Note, 49 Col. L. Rev. 629 (1949) to the same effect. Needless
to say we believe that Mr. Justice H a r l a n ’ s dissent in Plessy v.
Ferguson was the correct approach to the question.

58 See, e. g., United States v. American Trucking Assn., 310 U. S. 
534; The Church of the Holy Trinity v. United States, 143 U. S. 457.



47

insure that the Negro would be able to achieve the equality 
and freedom from discrimination which were among its 
major purposes.*6 The Congress in 1866 set about com­
batting the so-called Black Codes enacted by the southern 
states, which limited the rights of Negroes to own property, 
institute law suits, testify in any proceedings, and imposed 
more severe penalties on Negroes than on whites for the 
same offenses. This legislative effort culminated in the 
Civil Rights Act of 1866, but in the process of its enact­
ment the Congress became involved in a complicated se­
mantical debate over the meaning of the term “ civil 
rights” . The bill itself emerged as a specific corrective 
only to certain named abuses and failed to resolve the gen­
eral problems of equality and segregation.67

Eventually, it became apparent through the debates on 
the Civil Rights Act of 1866 that a new constitutional 
amendment was necessary to eliminate all “ discrimination 
between citizens on account o f race or color in civil 
rights” .68 To avoid the interpretative refinements of 
“ civil rights”  which had plagued the Congress, the more 
comprehensive “ equal protection of the laws”  was used 
as the key phrase for the statement of the basic principle.

Little can be found in the congressional debates relating 
to the Amendment itself which throws any light on the 
questions of interpretation here involved. The Amend­
ment passed both houses easily. But the fifth section of 
the Amendment authorized implementary legislation, and 
by the time the Amendment was ratified new waves of dis­
criminatory state legislation throughout the South required 
the 42nd Congress to face the task of shaping new practical 
statutory remedies. The extended debates of this Congress * 57 58

58 Flack, The Adoption of the Fourteenth Amendment, Ch. 1 
(1908).

57 Id., pages 21, 25, 29.
58 Cong. Globe, 39th Cong., 1st Sess., 1290, 1293 (1866).



48

and of its successor, which finally carried through the pas­
sage of the Civil Eights Act of 1875,59 are of great value in 
ascertaining the contemporary views and the “ constitu­
tional intent”  of the men who drafted the Amendment.60 
The public statements of these men are particularly per­
suasive in respect to the “ separate but equal”  doctrine, 
for this question was clearly presented, extensively de­
bated, and conclusively resolved in these hearings. If 
Plessy v. Ferguson, supra, is the foundation of the theory 
of civil rights, which holds that a Negro is afforded the 
equal protection of the laws if he gets merely a technical, 
segregated “ equality” , then it is highly relevant here to 
go behind that decision in order to demonstrate that the 
men who were responsible for the Fourteenth Amendment 
and its accompanying legislation expressly rejected the 
theory and all of its implications.

The bill sponsored by Senator Sumner of Massachu­
setts was primarily concerned with the prohibition of dis­
crimination in conveyances, inns, theatres and schools. By 
its language it was explicit that no segregation, no separa­
tion of these facilities was to be countenanced. It was 
pointed out many times that the bill did not permit the 
establishment of separate facilities even though they might 
be “ equal” .

Senator Sumner said:
“ Then comes the other excuse, which finds Equal­

ity in separation. Separate hotels, separate convey­
ances, separate theaters, separate schools, separate 
institutions of learning and science, separate 
churches, and separate cemeteries—these are the 
artificial substitutes for Equality; and this is the

59 The bill passed the Senate on February 27, 1875, by a vote of 
36 to 26, and was approved by the President on March 1st. See 
Flack, op. cit. supra note 56, at 277.

60 See Fairman and Morrison, Does The 14th Amendment Incor­
porate the Bill of Rights, 2 Stanford Law Rev. 5 (1949).



49

contrivance by which a transeedent right, involving 
a transcendent duty, is evaded * * * Assuming what 
is most absurd to assume, and what is contradicted 
by all experience, that a substitute can be an equiva­
lent, it is so in form only and not in reality. Every 
such attempt is an indignity to the colored race, 
instance with the spirit of Slavery, and this decides 
its character. It is Slavery in its last appearance.”  61 62

Senator Pease of Mississippi at a later date, shortly be­
fore the bill was passed in the 43rd Congress, states in un­
equivocal terms:

“ The main objection that has been brought for­
ward by the opponents of this bill is the objection 
growing out of mixed schools. * * * There has been 
a great revolution in public sentiment in the South 
during the last three or four' years, and I believe 
that today a majority of the southern people are in 
favor of supporting, maintaining, and fostering a 
system of common education. # # * I believe that the 
people of the South so fully recognize this, that if this 
measure shall become a law, there is not a state south 
of the Mason and Dixon’s line that will abolish its 
school system. * * * I say that whenever a state shall 
legislate that the races shall be separated, and that 
legislation is based upon color or race, there is a dis­
tinction made it is a distinction the intent of which is 
to foster a commitment of slavery and to degrade 
him. The colored man understands and appreci­
ates his former condition; and when laws are passed 
that say that ‘ because you are a black man you shall 
have a separate school,’ he looks upon that, and 
justly, as tending to degrade him. There is no equal­
ity in that.

“  * * * because when this question is settled I 
want every college and every institution of learning 
in this broad land to be open to every citizen, that 
there shall be no discrimination. ’ ’ 82

61 Cong. Globe, 39th Cong., 1st Sess., 382, 383 (1865).
62 Cong. Globe, 43rd Cong., 1st Session, page 4153 (1874).



50

In the course of these discussions of the “ separate but 
equal”  doctrine its proponents urged upon their colleagues 
various state court decisions which had followed it, viz., 
Roberts v. Boston and State, Games v. McCann, supra. 
These cases were expressly rejected as unsound and incon­
sistent within the meaning and purpose of the equal protec­
tion clause.68 Yet these are the decisions which form the 
principal judicial foundation for this Court’s decision in 
Plessy v. Ferguson.

By a vote of 26 to 21 the Senate of the 42nd Congress 
concluded that “ separate but equal”  schools, if established 
under the aegis o f the state or by force of state law, were a 
violation of the Fourteenth Amendment. This judgment, 
since it came from the men who best knew why the Amend­
ment was drafted and what they intended it to accom­
plish, should be highly persuasive. It should certainly cast 
doubt upon the soundness of the Plessy decision.

These Senators of 1874 and 1875 are among the most 
cogent and eloquent advocates of the petitioner’s cause in 
this Court.63 64 In rejecting the “ separate but equal”  theory,

63 See Cong. Globe, 42nd Cong., 2nd Sess. 3261 (1872) ; Cong. 
Globe, 43rd Cong., 1st Sess. 4081, 4082, 4116 (1874).

64 This is what the Bill meant to Senator Howe of Wisconsin, 
Cong. Globe, 43rd Cong., 1st Sess. 4147 (1874) :

“  * * * the simple justice of the provisions of this bill is 
self-evident.

“ What are they? A  command is proposed that no citizen 
the United States shall be excluded from the accommodations of 
inns, of public highways, of public schools, nor shall their remains 
be excluded from resting in public burial grounds notwithstanding 
they are black. That is all. A  national decree is proposed that a 
citizen shall have the right to travel along the public thorough­
fares if he pays his fare, and shall have a right to send his children 
to the public schools if he meets the charges, although he is not 
white. That is all. It lays not an ounce of weight upon any man 
of color but it lifts burdens from some. That is the bill.”



51

Senator Boutwell explained why the concept itself was a 
contradiction in terms, and a practical impossibility:

“  # * To say, as is the construction placed upon
so much of this bill as I propose to strike out, that 
equal facilities shall be given in different schools, is 
to rob your system of public instruction of that qual­
ity by which our people without regard to race or 
color, shall be assimilated in ideas, personal, political, 
and public, so that when they arrive at the period of 
manhood they shall act together upon public ques­
tions with ideas formed under the same influences 
and directed to the same general results; and there­
fore, I say, if it were possible, as in the large cities 
it is possible, to establish separate schools for black 
children and for white children, it is in the highest 
degree inexpedient to tolerate such schools. * * * 
And inasmuch as we have in this country 4,000,000 
colored people, I assume that it is a public duty that 
they and the white people of the country with whom 
they are to be associated in public affairs shall be 
assimilated and made one in the fundamental idea 
of human equality. Therefore, where it would be 
possible to establish different schools, I am against it 
as a matter of public policy.

“ But throughout the larger part of the South it 
is not possible to establish separate schools for black 
children and for white children, that will furnish 
means of education, suited to the wants of either 
class; and therefore in all that region of the country 
it is a necessity that the schools shall be mixed in 
order that they shall be of sufficient size to make them 
useful in the highest degree; and it is also important 
that they should be mixed schools, in order that the 
prejudice which now pervades portions of our people 
shall be uprooted by the power of general taxa­
tion. ’ ’ 85 65

65 Cong. Rec. 4158, 43rd Cong., 1st Sess. (1874).



52

Senator Frelinghuysen searched the underlying princi­
ples of our government in replying to his opponents:

“ If it be asked what is the objection to classifica­
tion by race, separate schools for colored children, I 
reply, that question can best be answered by the per­
son who proposes it asking himself what would be 
the objection in his mind of his children being ex­
cluded from the public schools that he was taxed to 
support on account of their supposed inferiority of 
race.

“ The objection of such a law on our part is that 
it would be legislation in violation of the fundamental 
principles of the nation.

“ The objection to the law in its effect on society 
is that ‘ a community is seldom more just than its 
laws;’ and it would be perpetuating that lingering 
prejudice growing out of a race having been slaves 
which it is as much our duty to remove as it was to 
abolish slavery.

“ Then, too, we know that if we establish separate 
schools for colored people, those schools will be in­
ferior to those for the whites. The whites are and 
will be the dominent race and rule society. The value' 
of the principle of equality in government is that 
thereby the strength inures to the benefit of the 
weak, the wealth of the rich to the relief of the poor, 
and the influence of the great to the protection of the 
lowly. It makes the fabric of society a unit, so that 
the humbler patrons cannot suffer without the more 
splendid parts being injured and defeated. This is 
protection to those who need it. And it is just that 
it should be so ; for of what value is the wealth and 
talent and influence of the individual if you isolate 
him from society? Great as he may be, he is the 
debtor to society. Let him pay.

“ Sir, if we did not intend to make the colored 
race full citizens, if we propose to place them under



the ban of any legalized disability or inferiority, and 
there to hold them, we should have left them 
slaves.” 66

One Senator prophesied that under the “ pretense of 
what is called equality”  the result would be to “ grind out 
every means of education that the colored man can have” .* 67 68 
This same fear was echoed by Mr. Justice TT.u a,a n  in his 
dissenting opinion in Plessy v. Ferguson.e8

The doctrine of separate but equal treatment is in direct 
conflict with all other decisions of this Court invalidating 
governmentally imposed distinctions based on race or an­
cestry. It is contrary to the intent of the Fourteenth Amend­
ment. Plessy v. Ferguson furnishes the only support for the 
doctrine. We believe that a reexamination of this decision 
will require that it be overruled.

Conclusion.

The District Court stated: “ It is the duty of this court 
to honor the public policy of the State in matters relating 
to its internal social affairs quite as much as it is our duty 
to vindicate the supreme law of the land.”  The right to 
public graduate education in a public institution on an equal 
basis with all other applicants is not a matter within the 
category of “ internal social affairs” . Appellees’ reluctant 
action in admitting McLaurin to the graduate school, and 
at the same time subjecting him to the type of segregation 
which is in many respects more vicious than that in the 
usual separate schools, places before this Court the ques­
tion of state notions of equality as against the clear intent 
of the Fourteenth Amendment.

e6 j (j_ a£ 3452.
67 Cong. Rec. 4173, 43rd Cong., 1st Sess. (1874), Mr. Edwards of 

Vermont.
68 Plessy v. Ferguson, supra, at 552.



54

Most of those states which have traditions and prac­
tices similar to Oklahoma in enforcing racial discrimination 
refused in 1866 and 1867 to ratify the Fourteenth Amend­
ment, because it was felt, and correctly, that the Amend­
ment would require them to accord to Negroes the same 
rights accorded to white persons. Their policy, since the 
adoption of the Fourteenth Amendment, has been to con­
tinue the policy of refusing to recognize their Negro citi­
zens as equal to other citizens. By means of discriminatory 
registration and voting practices, by unequal enforcement 
of criminal laws, and rigid segregation patterns, these 
states have continued to thwart the true purposes of the 
Fourteenth Amendment.

This Court has been prevented from passing upon the 
question here involved because these states have, in the 
past, refused to give even a semblance of equality. Missouri 
ex rel. Gaines v. Canada; Sipuel v. Board of Regents. Now 
that the issue is clearly presented, this Court is urged to 
reaffirm the principle that governmentally enforced racial 
classifications are unconstitutional.

W herefore, it is respectfully submitted that the judg­
ment of the Court below should be reversed.

R obert L . Carter,
A mos T. H aul,
T htjrgood M arshall,

Attorneys for Petitioner.
J ack Greenberg,
Constance B. M otley,
F rank D. R eeves,

Of Counsel.

A nnette H. P eyser,
Research Consultant.

February 25, 1950.



55

APPENDIX A.
Oklahom a Statutes in Effect at Time o f Hearing 

and Judgment in Lower Court.
70 0. S. 1941, Section 455. It shall be unlawful for any 

person, corporation or association of persons, to maintain 
or operate any college, school or institution of this state 
where persons of both white and colored races are received 
as pupils for instruction, and any person or corporation 
who shall operate or maintain any such college, school or 
institution in violation hereof, shall be deemed guilty of a 
misdemeanor, and upon conviction thereof shall be fined 
not less than one hundred dollars nor more than five hun­
dred dollars, and each day such school, college or institu­
tion shall be open and maintained shall be deemed a sepa­
rate offense. (L. 1913, ch. 219, p. 572, art. 15, Section 5.)

70 O. S. 1941, Section 456. Any instructor who shall 
teach in any school, college or institution where members 
of the white race and colored race are received and enrolled 
as pupils for instruction, shall be deemed guilty of a misde­
meanor, and upon conviction thereof shall be fined in any 
sum not less than ten dollars nor more than fifty dollars for 
each offense, and each day any instructor shall continue to 
teach in any such college, school or institution, shall be con­
sidered a separate offense. (L. 1913, ch. 219, p. 572, art. 15, 
Section 6.)

70 0. S. 1941, Section 457. It shall be unlawful for any 
white person to attend any school, college or institution, 
where colored persons are received as pupils for instruction, 
and any one so offending shall be fined not less than five 
dollars, nor more than twenty dollars for each offense, and 
each day such person so offends, as herein provided, shall 
be deemed a distinct and separate offense; provided, that 
nothing in this article shall be construed as to prevent any 
private school, college or institution of learning from main­
taining a separate or distinct branch thereof in a different 
locality. (L. 1913, ch. 219, p. 572, art. 15, Section 7.)



56

APPENDIX B.

Statutes A dopted by Oklahom a Legislature A fter 
Hearing and Judgment in Court Below.

Section 9. Repealing Clause. Chapter 1, and Chapters 
3 to 13, inclusive and Chapters 15 to 20, inclusive, and 
Chapters 22 to 27, inclusive, and Chapters 29 to 31, inclu­
sive, and Sections 21 to 34, inclusive, and Section 36, Section 
39, and Sections 661 to 684, inclusive, of Title 70, Oklahoma 
Statutes 1941, and Chapter 14 of Title 74, Oklahoma Stat­
utes 1941, and Chapters 5 to 26, inclusive, and Chapters 27 
to 31, inclusive, and Chapter 45a, of Title 70, Oklahoma 
Session Laws 1943, and Chapter 10 of Title 68, Oklahoma 
Session Laws 1944, and Chapter 21 of Title 70, Oklahoma 
Session Laws 1944, and Chapters 2 to 9, inclusive, and 
Chapters 27 to 31, inclusive, of Title 70, Oklahoma Session 
Laws 1945, and Chapters 6 to 19, inclusive, and Chapters 
22 to 23a, inclusive, and Chapters 23c to 31f, inclusive, of 
Title 70, Oklahoma Session Laws 1947, and Sections 3 to 7, 
inclusive, of Article I, and Articles II and III, of Chapter 
21, Title 70, Oklahoma Session Laws 1947, Section 32 of 
Chapter 10a Title 74 Oklahoma Session Laws of 1947, and 
all other laws and parts of laws in conflict with the pro­
visions of this Act are hereby repealed. All other laws and 
statutory provisions that are applicable to public schools, 
school districts and governing boards thereof, and other 
matters dealt with in this Act and that are not inconsistent 
with any of the provisions of this Act, shall continue to be 
applicable thereto and shall not be held to be repealed by 
any of the provisions of this Act.

Section 10. Effective Date of Act. The provisions of 
this Act shall not become operative until July 1, 1949.



57

CHAPTER 15—Separate School For Races.

H ouse B ill No. 405.

A h  a c t  relating to the instruction and attendance of the 
colored race in colleges or institutions of higher educa­
tion of the State established and/or used by the white 
race; amending 70 O. S. 1941 §§ 455, 456 and 457; repeal­
ing all Acts or parts of Acts, in so far as same are in 
conflict with this Act or the public policy revealed 
thereby; and declaring an emergency.

B e i t  e n a c t e d  b y  t h e  p e o p l e  o p  t h e  s t a t e  o p  Ok l a h o m a  :

Section 1. Mixed Schools—Exceptions. 70 0. S. 1941
§ 455 is hereby amended to read as follows:

§ 455. It shall be unlawful for any person, corporation 
or association of persons to maintain or operate any col­
lege, school or institution of this State where persons of 
both white and colored races are received as pupils for 
instruction, and any person or corporation who shall oper­
ate or maintain any such college, school or institution in 
violation hereof shall be deemed guilty of a misdemeanor, 
and upon conviction thereof shall be fined not less than 
One Hundred Dollars ($100.00) nor more than Five Hun­
dred Dollars ($500.00), and each day such school, college 
or institution shall be open and maintained shall be deemed 
a separate offense. Provided, that the provisions of this 
Section shall not apply to programs of instruction leading 
to a particular degree given at State owned or operated 
colleges or institutions of higher education of this State 
established for and/or used by the Avhite race, where 
such programs of instruction leading to a particular degree 
are not given at colleges or institutions of higher educa­
tion of this State established for and/or used by the colored 
race; provided further, that said programs of instruction 
leading to a particular degree shall be given at such col­



58

leges or institutions of higher education upon a segregated 
basis. Segregated basis is defined in this Act as classroom 
instruction given in separate classrooms, or at separate 
times. The provisions of this Section are subject to Sec­
tion Four (4) hereof.

Section 2. Teaching in Mixed Schools—Exceptions. 70
0. S. 1941 § 456 is hereby amended to read as follows:

§ 456. Any instructor who shall teach in any school, col­
lege or institution where members of the white race and 
colored race are received and enrolled as pupils for instruc­
tion, shall be deemed guilty of a misdemeanor, and upon 
conviction thereof shall be fined in any sum not less than 
Ten Dollars ($10.00) nor more than Fifty Dollars ($50.00) 
for each offense, and each day any instructor shall continue 
to teach in any such college, school or institution shall be 
considered a separate offense. Provided, that the pro­
visions of this Section shall not apply to programs of in­
struction leading to a particular degree given at State 
owned or operated colleges or institutions of higher educa­
tion of this State established for and/or used by the white 
race, where such programs of instruction leading to a par­
ticular degree are not given at colleges or institutions of 
higher education of this State established for and/or used 
by the colored race; provided further, that said programs 
of instruction leading to a particular degree shall be given 
at such colleges or institutions of higher education upon a 
segregated basis, as defined in this Act. The provisions of 
this Section are subject to Section Four (4) hereof.

Section 3. White Persons Attending Colored Schools—  
Exceptions. 70 O. S. 1941 §457 is hereby amended to read 
as follows:

§ 457. It shall be unlawful for any white person to at­
tend any school, college or institution where colored per­



59

sons are received as pupils for instruction, and any one so 
offending shall be fined not less than Five Dollars ($5.00), 
no more than Twenty Dollars ($20.00) for each offense, and 
each day such person so offends, as herein provided, shall be 
deemed a distinct and separate offense; provided, that noth­
ing in this Article shall be so construed as to prevent any 
private school, college or institution of learning from main­
taining a separate or distinct branch thereof in a different- 
locality. Provided, that the provisions of this Section shall 
not apply to programs of instruction leading to a particular 
degree given at State owned or operated colleges or institu­
tions of higher education of this State established for 
and/or used by the white race, where such programs of in­
struction leading to a particular degree are not given at 
colleges or institutions of higher education of this State 
established for and/or used by the colored race; provided 
further, that said programs of instruction leading to a par­
ticular degree shall be given at such colleges or institutions 
of higher education upon a segregated basis, as defined in 
this Act. The provisions of this Section are subject to Sec­
tion Four (4) hereof.

Section 4. Oklahoma State Regents for Higher Educa­
tion—Certificate. For the purposes of this Act, a certificate 
to the President of any college or institution of higher edu­
cation by the Oklahoma State Regents for Higher Education 
or by the executive Officers of said Board, certifying that 
any course or courses given at such college or institution of 
higher education established for and/or used by the white 
race are not given at colleges or institutions of higher edu­
cation of this State established for and/or used by the 
colored race shall be deemed conclusive proof of such fact 
in any criminal proceeding in the Courts of Oklahoma 
against the administrative officers of such college or institu­
tion, or against the faculty or against the students thereof



6 0

for the violation of the provisions of any of the three (3) 
preceding Sections hereof.

Section 5. Repealing Clause. All acts or parts of acts, 
in so far as same are in conflict with this Act or the public 
policy revealed thereby, are hereby repealed.

Approved June 9, 1949. Emergency.

212 [7700]
Lawyers Press, Inc., 165 William St., N. Y. C. 7; ’Phone: BEekman 3-2300



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