Meredith v. Fair Transcript of Record Vol. I
Public Court Documents
January 1, 1962

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Brief Collection, LDF Court Filings. Meredith v. Fair Transcript of Record Vol. I, 1962. ebee9075-bd9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/c6c4a972-fde2-4379-a5c1-6e582ab6cf57/meredith-v-fair-transcript-of-record-vol-i. Accessed July 16, 2025.
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TRANSCRIPT OF RECORD UNITED STATES COURT of APPEALS F I F T H C I R C U I T No. JAMES H. MEREDITH, APPELLANT VERSUS CHARLES DICKSON FAIR, ETC., ET AL, APPELLEES VOLUME I Appeal from the United States District Court for the Southern District of Mississippi, Jackson Division I N D E X Volume I - Meredith Case Pages 1 - 156 Caption Complaint Notice of Motion Motion For Temporary Restraining Order And Preliminary Injunction Motion For Order Requiring The Defendant Registrar To Appear For The Taking of His Deposition Order To Show Cause Notice Of Taking Depositions Plaintiff's Objection to Taking of Deposition Order Order Motion For Production Exhibit A - Affidavit In Support of Motion For Production of Documents Notice of Taking Deposition On Oral Examination Motions of Defendant, Robert B. Ellis, Registrar Of The University of Mississippi, To Vacate Plaintiff's Notice of Taking His Deposition, And The Taking Thereof, and To Suspend Or Stay The Taking of Such Deposition. Exhibit A - Affidavit Motion of Defendants For Extension of Time Within Which to Plead Exhibit A - Affidavit Order Page No. 1 2 18 18 22 24 25 29 30 31 33 35 38 39 43 47 50 53 Order 55 Motion For Preliminary Injunction 57 Notice of Motion 60 On Motions For Additional Time 61 On Dates For Filing of Answer And Arguments 79 of Motions Notice of Taking Deposition on Oral Examination 98 Request For Amendment to Order Permitting Entry 99 Upon Property And Inspection of Records Notice of Motion 100 Separate Answer of Charles Dickson Fair, E .R. Jobe, 101 The Board of Trustees of State Institutions of Higher Learning Of The State of Mississippi, Volume I Page No. Edgar Ray Izard, Leon Lowrey, Ira Lamar Morgan, Malcolm Mette Roberts, 'William Orlando Stone, S. R. Evans, Verner Smith Holmes, James Napoleon Lipscomb, Tally D. Riddell, Harry Gordon Carpenter, Robert Bruce Smith H, Thomas Jefferson Tubb, James Davis Williams and Arthur Beverly Lewis Separate Answer of Defendant, Robert B. Ellis, 104 Registrar of The University of Mississippi Motion of Defendant to Dismiss For Lack 131 of Jurisdiction-Immunity Motion To Dismiss For Lack of 132 Diversity of Citizenship and Jurisdictional Amount The Doctrine of Abstention 133 Exhibit A - Letter from J. H. Meredith 136 Exhibit B - Letter from Robert B. Ellis 137 Exhibit C - Letter from J. H. Meredith 138 Exhibit D - Application 139 Exhibit E - Telegram from Robert B. Ellis 140 Exhibit F - Letter from J.H. Meredith 140 Exhibit G - Letter from Robert B. Ellis 142 Exhibit H - Letter from J.H.Meredith 142 Exhibit I - Letter from J. H. Meredith 143 Exhibit J - Letter from J. H. Meredith 144 ExhibitK - Letter from J.H.Meredith 146 Vol. I Page No. Exhibit L - Letter from Robert B. Ellis 148 Exhibit M - Letter from J, H. Meredith 150 Exhibit N - Letter from J.H. Meredith 152 Exhibit O - Letter from J.H.Meredith 153 Exhibit P - Letter from Robert B. Ellis 154 Exhibit Q - Telegram from J.H.Meredith 155 Exhibit R - Telegram from Robert B. Ellis 156 MEMORANDUM FOR CLERK, UNITED STATES COURT OF APPEALS APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES SOUTHERN DISTRICT OF MISSISSIPPI, JACKSON DIVISION JAMES H. MEREDITH, On Behalf of Himself and Others Similarly Situated, APPELLANT VERSUS CHARLES DICKSON FAIR, President of the Board of Trustees of State Institutions of Higher Learning of the State of Mississippi, ET AL, APPELLEES ATTORNEYS FOR APPELLANT: Mrs. Constance Baker Motley 10 Columbus Circle New York 19, N. Y. Mr. Derrick A. Bell, Jr. 10 Columbus Circle New York 19, N. Y. Mr. R. Jess Brown 1105 1/2 Washington Street Vicksburg, Mississippi ATTORNEYS FOR APPELLEES: Mr. Joe T, Patterson Attorney General Mr. Dugas Shands and Mr. Edward L. Cates Assistant Attorneys General Mr. Charles Clark and Mr. Petter M. Stockett, Jr. Special Assistant Attorneys General State Capitol Jackson, Mississippi 2 C O M P L A IN T (Filed May 31, 1961) IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI JACKSON DIVISION ------------------------------------------------------------------------------------------------------ ----------------} JAMES H. MEREDITH, on behalf of himself and others similarly situated, ) Plaintiff, ) v. ) CHARLES DICKSON FAIR, President of the Board of ) Trustees of State Institutions of Higher Learning of the State of Mississippi, Louisville, Mississippi, ) and ) EUCLID RAY JOBE, Executive Secretary of The Board of Trustees of State Institutions of Higher Learning of the State of Mississippi, Jackson, Mississippi, and ) ) CIVIL ACTION NO. 3130 } ) EDGAR RAY IZARD, Hazlehurst, Mississippi; LEON LOWREY, Olive Branch, Mississippi; ) IRA LAMAR MORGAN, Oxford, Mississippi; MALCOLM METTE ROBERTS, Hattiesburg, Mississippi; ) WILLIAM ORLANDO STONE, Jackson, Mississippi; S. R. EVANS, Greenwood, Mississippi; VERNER SMITH ) HOLMES, McCornb, Mississippi; JAMES NAPOLEON LIPSCOMB, Macon, Mississippi; TALLY D* RIDDELL, Quitman, ) Mississippi; HARRY GORDON CARPENTER, Rolling Fork, Mississippi; ROBERT BRUCE SMITH,H, Ripley, ) Mississippi and THOMAS JEFFERSON TUBB, West Point, Mississippi, MEMBERS OF THE BOARD OF TRUSTEES OF ) STATE INSTITUTIONS OF HIGHER LEARNING, and ) JAMES DAVIS WILLIAMS, Chancellor of the University of Mississippi, Oxford, Mississippi, 3 ) ) and ARTHUR BEVERLY LEWIS, Dean of the College of Liberal Arts of the University of Mississippi, Oxford, Mississippi, and ROBERT BYRON ELLIS, Registrar of the University of Mississippi, Oxford, Mississippi, Defendants. ) ) ) ) ) ) ) C O M P L A I N T 1. The jurisdiction of this Court is invoked pursuant to provi sions of Title 28, United States Code, p 1343(3). This is an action authorized by law, Title 42, United States Code, p 1983. This action is brought by the plaintiff to redress the deprivation, under color of state law, state custom, state regulation and state usage, of rights secured to him by the Constitution of the United States. The rights here sought to be secured are rights guaranteed by the due process and equal protection clauses of the Fourteenth Amendment to the Constitu tion of the United States, as hereinafter more fully appears. 2. This is a proceeding for a declaratory judgment, pursuant to provisions of Title 28, United States Code, p 2201, for the purpose of having this Court determine the question whether the plaintiff, and members of the class represented by plaintiff, as Negro citizens and 4 residents of the State of Mississippi, have a right to attend the University of Mississippi and other state institutions of higher learn ing presently limited to white students, upon the same terms and con ditions applicable to white citizens and residents of Mississippi. 3. This is a proceeding for a temporary restraining order with out notice, a preliminary and permanent injunction, enjoining the de fendants, and each of them, their agents, servants, employees, attorneys, successors, and all persons in active concert and partici pation with them, from: a) refusing to consider and act expeditiously upon the application of the plaintiff, and members of his class, for admission to the University of Mississippi, and other state institutions of higher learning, solely because of race and color; b) refusing to advise the plaintiff, and members of his class, as to the status of their applications and deficiencies with respect thereto, solely because of race and color; c) refusing to admit plaintiff, and members of his class, to the University of Mississippi and other state institutions of higher learning, solely because of race and color; d) refusing to permit plaintiff, and members of his class, to matriculate as students at the University of Mississippi, upon the same terms and conditions applicable to white students; and e) taking any action or doing any act which interferes with, defeats, or thwarts the right of plaintiff, and members of his class, 5 to attend the University of Mississippi, and other state institutions of higher learning, upon the same terms and conditions applicable to white students, or which interferes with, defeats, or thwarts the law ful orders of this Court which are designed to secure rights of plain tiff, and members of his class, to attend the University of Mississippi and other state institutions of higher learning, upon the same terms and conditions applicable to white students. 4. This is a class action brought by plaintiff on behalf of him self and on behalf of all other Negro students in the State of M ississi ppi who are similarly situated and affected by the policy, practice, custom and usage complained of herein. Plaintiff and members of his class are Negro citizens and residents of the State of Mississippi who, by reason of their prior requisite education and citizenship status, have a right to apply for admission to and attend the University of Mississippi, and other state institutions of higher learning, upon the saine_.terms-and conditions applicable to white citizens similarly sit- uated. JI’he.members of the class are too numerous to be brought in dividually before this Court and are not aH known to the plaintiff, but there are common questions of law and fact involved, common griev ances arising out of a common wrong, and a common relief is sought for this plaintiff and all other members of the class. Plaintiff fairly and adequately represents the members of the class on behalf of which he sues. 5. The plaintiff is James Howard Meredith, an adult Negro 6 citizen of the United States and of the State of Mississippi, presently residing in Jackson, Mississippi. The plaintiff was born in Kosciusko, Attala County, Mississippi on the 25th day of June 1933. All of his elementary and high school education, except for the last year, was received in Mississippi. Plaintiff's last year of high school education was received at Gibbs High School, St. Petersburg, Florida, from which he graduated in June 1951. During the period July, 1951 to July, 1960, plaintiff served most of this time in the armed forces of the United States and was honorably discharged from the Air Force on July 21, 1960. In September, 1960, plaintiff entered Jackson State College, Jackson, Mississippi and recently completed the sophomore year at that institution. While in the armed service, plaintiff attended the University of Kansas at Lawrence, Kansas, Washburn University at Topeka, Kansas and the University of Maryland, Far East Division, and earned some college credits. Plaintiff is eligible for Immediate readmission to each of these institutions and his record meets the re quirements of the program in the University for which he has applied. 6. The defendants are: The Board of Trustees of State Institu tions of Higher Learning, the members of which are: Charles Dickson Fair, President; Euclid Ray Jobe, Executive Secretary; Edgar Ray Izard, Leon Lowrey, Ira Lamar Morgan, Malcolm Mette Roberts, William Orlando Stone, S. R. Evans, Verner Smith Holmes, James Napoleon Lipscomb, Tally D. Riddell, Harry Gordon Carpenter, Robert Bruce Smith, H and Thomas Jefferson Tubb. The other defendants are: 7 John Davis Williams, Chancellor of the University of Mississippi; Arthur Beverly Lewis, Dean of The College of Liberal Arts of the University of Mississippi and Robert Byron Ellis, Registrar of the University of Mississippi. 7. Management and control of the University of Mississippi, and all other institutions of higher learning of the State of Mississippi are vested in the defendant Board of Trustees of State Institutions of High er Learning. The members of said Board are appointed by the Gover nor with the advice and consent of the Senate. Said Board has the pow er and authority to elect the heads of the various institutions of higher learning and to contract with all deans and other members of the admin istrative staff of the institutions under its management and control. (Mississippi Constitution (1956), Article 8, p 213-A; Miss. Code Ann. (1952), Title 24, p p 6719, 6720,6721,6722, 6723 and 6724, as amend ed.) The institutions of higher learning presently under the manage ment and control of said Board are, in addition to the University of Mississippi (white), Mississippi State College (white), Mississippi State College for Women (white), Mississippi Southern College (white) and Delta State Teachers College (white), Alcorn Agricultural and Me - chanical College (Negro), Mississippi Vocational College (Negro) and Jackson State College (Negro). The defendant Board is composed of twelve members appointed for twelve year terms in groups of four each every four years. One member is appointed for each Congressional District, one for each of the three Supreme Court Districts and two 8 from the State-at-large. In addition to these twelve members, a mem ber is appointed from DeSoto County, who is known as the LaBauve trustee, to serve for the University only. There are no ex-officio members. The Board selects Its own president and appointed the de fendant Chancellor as executive head of the University, the defendant Dean as the Dean of the College of Liberal Arts of the University of Mississippi and the defendant Registrar as Registrar of the University of Mississippi. The Board maintains offices in the City of Jackson, Mississippi. The various members of the Board are all citizens of Mississippi residing in various districts of the State of Mississippi. 8. On January 26, 1961, the defendant Registrar sent the plain tiff an application form for admission to the University of Mississippi instructions, and a General Information Bulletin. This application form was duly completed by plaintiff and mailed on January 31, 1961 to the Registrar. The application form requested information as to the applicant's race with which the plaintiff complied by stating that he is a Negro. He also advised the Registrar of his race in a letter date_ January 31,1961 to the Registrar which accompanied his application. Plaintiff sought admission to the Liberal Arts College of the University of Mississippi for the Second Semester of the 1960-61 school year which was to commence February 6, 1961. His application indicated that he would be a transfer student with some advance standing and also indicated that he expected to be classified as a sophomore. The appli cation was received by the Registrar. Thereafter, on February 4,1961, 9 the Registrar advised the plaintiff by wire that applications for admis sion or registration for the Second Semester received after January 25, 1961 were not being considered. Subsequently, on February 20, 1961, plaintiff wrote the Registrar advising him that he would like his appli cation considered a continuing application for the Summer Session be ginning June 8, 1961, and requested the Registrar to inform him whether he, the Registrar, had received all transcripts and other infor mation necessary to make plaintiff's application a complete one, and further requested immediate action on his application. The plaintiff did not receive a reply to this letter. Consequently, on March 18,1961, plaintiff again wrote the Registrar requesting that his application be considered a continuing one for the Summer Session and for the Fall Session 1961 and again requested the Registrar to advise plaintiff of the completeness and status of his application. Again, the plaintiff did not receive a reply. On March 26, 1961, the plaintiff again wrote the Registrar requesting that he send plaintiff an evaluation of his credits as a transfer student and advise him of the extent to which his credits would be applied toward the degree sought by plaintiff in the College of Liberal Arts. With this letter, the plaintiff also forwarded to the Reg istrar five letters from five persons, citizens and residents of M ississ ippi, certifying to the plaintiff's good moral character and recommend ing his admission to the University. In connection with his original application, the plaintiff did furnish five such letters which did not spe cifically recommend his admission to the University as required by the 10 University of Mississippi Bulletin but did attest to his good moral char acter, Plaintiff did not receive a reply to this letter. Thereafter, on April 12, 1961, plaintiff wrote a letter to defendant Arthur Beverly Lewis, Dean of the College of Liberal Arts to which plaintiff seeks ad mission, reviewed the steps taken by plaintiff to secure admission to the University, and complained of the Registrar's failure to reply to his application and several letters and stated that he, plaintiff, believ ed the Registrar's failure to reply was based upon race and color. Plaintiff requested the Dean to review his case with the Registrar and to advise him what admission requirements, if any, he had failed to meet and to give him some assurance that his race and color were not the basis for his failure to gain admission to the University. The de fendant Dean did not reply to this letter. However, on May 9, 1961,the Registrar wrote plaintiff and advised him that he, the Registrar, had seen plaintiff's letter of April 12, 1961 to the Dean and advised plaintiff that his application had been received and would receive proper atten tion. The Registrar further advised plaintiff that transcripts of credits from the colleges listed on the plaintiff's application (the colleges pre viously attended by plaintiff) had been received and that each showed a certificate of honorable dismissal or certification of good standing in accordance with the admission requirements. The Registrar advised p laintiff, in addition, that in accordance with the standards of the Uni versity of Mississippi plaintiff would receive a maximum credit of forty eight semester hours if his application for admission as a transfer 11 student should be approved, and that Plaintiff offered a total of ninety semester hours credit obtained at other colleges, including Jackson State College, In his letter of May 9, 1961, the Registrar also request ed plaintiff to advise whether he desired his application "to be treated as a pending application. " The plaintiff replied to this letter on May 15, 1961 and advised that he desired his application to be treated as a pend ing application for admission to the Summer Session# First Term, June 1961, and requested the Registrar to advise him whether there was any thing further the plaintiff needed to do in order to complete his applica tion. Plaintiff did not receive a reply to this letter. Thereafter, on May 21, 1961, plaintiff again wrote the Registrar requesting information as to the status of his application so that he could make plans for attend ing the Summer Session. On May 26, 1961, plaintiff wired the Regis trar requesting that he be advised whether he would be admitted to the Summer Session. On the same date, plaintiff received a special deliv ery letter from the Registrar denying plaintiff’ s admission on the ground that plaintiff attended a non-accredited college and on the ground that he did not have the required citizen alumni certificates, and on other un disclosed grounds. 9. Applications for admission to the College of Liberal Arts of the University of Mississippi, to which plaintiff seeks admission, are submitted to the Registrar. The Bulletin of the University of Mississip pi requires each applicant to file with the Registrar five letters from responsible citizens who have known the applicant for at least two years, 12 certifying to the applicant's good moral character and recommending his admission to the University. An applicant who resides in M ississi ppi must be recommended by citizens of his county who are University alumni, but applicants who reside in another state may secure the nec essary recommendations from any five responsible citizens of his com munity. Plaintiff is not able to secure recommendations by citizens of his county who are University alumni for the reason that plaintiff is a Negro citizen and resident of the State of Mississippi and there are not now and never have been any Negro graduates of the University of Miss issippi, a fact of common and historical knowledge recognized by the laws of Mississippi cited above establishing separate institutions of higher learning for Negroes. The plaintiff does not know any white alumni of the University of Mississippi who would recommend his ad mission in view of the segregation policy complained of herein and the State's official opposition to desegregation. Plaintiff alleges that the alumni certification requirement is unconstitutional as applied to him and other Negroes for the reason that it places a burden on Negroes seeking admission to the University of Mississippi which is not shared by white residents seeking admission to the University of Mississippi. The plaintiff alleges that the alumni certification requirement is uncon stitutional because in operation and effect it bars the admission of qualified Negroes to the University of Mississippi solely because they are Negroes. 10. Plaintiff alleges that he meets all of the requirements for 13 admission to the University of Mississippi as a transfer student; that he is ready, willing and able to pay all fees and tuition charges requir ed of all other students; and that he is ready, willing and able to abide by all rules and regulations of the University of Mississippi which are applicable to white students similarly situated. 11. Plaintiff alleges that defendants, and each of them, have pursued and are presently pursuing a state policy, state practice, state custom and state usage of maintaining and operating separate state in stitutions of higher learning for the White and Negro citizens of Miss issippi. The institutions of higher learning limited by policy practice, custom and usage to white students are; the University of Mississippi, Mississippi State College, Mississippi State College for Women, Miss issippi Southern College, and Delta State Teachers College. The state institutions of higher learning limited by defendants to Negro students are: Jackson State College, the college attended by plaintiff during the past school year, Alcorn Agricultural and Mechanical College, and Mississippi Vocational College. Plaintiff alleges, on information and belief, that pursuant to said policy, practice, custom and usage, plain tiff's application was not treated in the same manner as applications of white persons for admission to the University of Mississippi; that plaintiff was not advised promptly concerning the status of his applica tion or his ability or inability to meet requisite admission require ments; that plaintiff was never advised by the defendant Dean of the College of Liberal Arts, as requested by plaintiff, that plaintiff's race 14 and color would not be considered by the University in passing upon his application and would not operate to bar his admission to the University of Mississippi; and that an applicant for admission to the University of Mississippi is required to state his or her race upon the application blank and this information is used to prevent the unwitting admission of Negroes. In this case, the plaintiff in making application to the Univer sity plainly stated his race and stated his race in his letter to the de fendant Registrar which accompanied plaintiff’s application. Plaintiff alleges, on Information and belief, that the policy of the State of M iss issippi as clearly understood and interpreted by its officials and resi dents is that Negroes and whites are educated in separate institutions of higher learning. Pursuant to this policy Negroes do not generally ap ply for admission to the University of Mississippi or other institutions of higher learning maintained and operated for white persons only, al though many Negro citizens and residents of the State of Mississippi are qualified by prior requisite education, citizenship and residence for ad mission to such institutions. Plaintiff alleges, on information and be lief, that he has not been accepted as a transfer student to the University of Mississippi pursuant to said policy, practice, custom and usage and had been denied admission solely because of his race and color. 12. Plaintiff alleges that the policy, practice, custom and usage complained of herein has resulted and will continue to result in irrepar able injury to him. Plaintiff has no other adequate or speedy remedy at law by which his right to attend the University of Mississippi for the 15 1961 Summer Session may be secured, except by this action for de claratory judgment and injunction. Any other remedy to which plain tiff might be remitted would be attended by such uncertainties and de lays, in view of the state policy, practice, custom and usage complain ed of herein, as to result in further irreparable injury to the plaintiff and members of his class. WHEREFORE, plaintiff prays that this Court will advance this case on the docket and order a speedy hearing of this cause and will grant the following relief: 1. Issue a temporary restraining order without notice, a pre liminary injunction and a permanent injunction, enjoining the defend ants, and each of them, their agents, servants, employees, success ors, attorneys, and all persons in active concert and participation with them, from: (a) refusing to act expeditiously upon the applications of plaintiff and members of his class for admission to the University of Mississippi, or any other state institution of higher learning presently limited to white students; (b) refusing to expeditiously advise plaintiff and members of his class of the status of their applications for admission and of the requirements for admission which they fail to meet; (c) requiring plaintiff or any member of his class to furnish certificates from alumni of the University of Mississippi? (d) refusing to admit the plaintiff and members of his class 16 to the University of Mississippi or any other state institution of higher learning presently limited to white students upon the same terms and conditions applicable to white students; (e) making the attendance or matriculation of plaintiff and members of his class at any state institution of higher learning condi tioned upon terms and conditions not applicable to white students sim ilarly situated, and (f) interfering in any manner with the right of plaintiff and members of his class to register at, matriculate in, or attend the Uni versity of Mississippi or any other state institution of higher learning limited to white students; (g) taking any action or doing any act which will impair, frustrate, or defeat the orders of this Court securing plaintiff's rights or the rights of members of his class. 2. Issue a declaratory judgment declaring the rights and other legal relations of the parties to this action which will have the force and effect of a final judgment. 3. Grant the plaintiff his costs herein, and grant him such other, further, additional, or alternative relief as may appear to be required to secure his admission to the University of Mississippi without regard to his race and color. /S / R. Jess Brown R. Jess Brown 1105 1/2 Washington Street Vicksburg, Mississippi 17 /S / Constance Baker Motley______ _ Constance Baker Motley Thurgood Marshall 10 Columbus Circle New York 19, New York Attorneys for Plaintiff Derrick A. Bell, Jr. Of Counsel V E R I F I C A T I O N State of Mississippi) ) SS.: County of Hinds ) James Howard Meredith, being duly sworn, deposes and says that he resides at 1129 Maple Street, Apartment 5-D, Jackson, Miss issippi; that he is the plaintiff herein; that he has read the foregoing complaint and knows the contents thereof and that the same are true to the best of his knowledge and belief except as to the matters therein stated to be alleged on information and belief, and as to those matters he believes them to be true. /S / James H Meredith_____ __ Sworn to before me this 31 day of Mav , 1961. /S / Margaret A. Lewis .......... Notary Public My commission expires April 2,1962 (SEAL) H e * * * * * * * * * * * * * * * * * * * * * * * * * 18 NOTICE OF MOTION (Title omitted - Filed May 31, 1961) PLEASE TAKE NOTICE that the undersigned attorneys for plaintiff will bring on for hearing before United States District Judge Sydney C. Mize, at the United States Court House, Biloxi, Mississippi, on the 12th day of June, 1961, at 9;00 o ’clock A. M ., in the forenoon of that day, or as soon thereafter as counsel can be heard, the attach ed motion for preliminary injunction, pursuant to the provisions of Rule 65 F. R. C. P. /S / R. Jess Brown R. Jess Brown 1105 1/2 Washington Street Vicksburg, Mississippi /S / Constance Baker Motley Constance Baker Motley 10 Columbus Circle New York 19, New York Thurgood Marshall 10 Columbus Circle New York 19, New York MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION (Title Omitted - Filed May 31, 1961) The plaintiff, upon the annexed verified complaint, moves this Court for a temporary restraining order without notice, and a prelim inary injunction, pending the final disposition of this case, and, as grounds therefor, relies upon the allegations of his verified complaint and shows the following; 19 1. The Summer Session of the College of Liberal Arts of the University of Mississippi commences on June 8, 1961. 2. Plaintiff has sought admission to the University of Mississip pi since January 31, 1961, and was not clearly denied admission by the Registrar of the University until May 26, 1961, the day on which plaintiff received a special delivery letter from the Registrar advising plaintiff that his admission is denied on the ground that he has attended a non-accredited college and on the ground that he did not furnish the proper certificates by citizens of Mississippi and on other undisclosed grounds. 3. Jackson State College, the college which plaintiff attended during the school year 1960 - 1961, is a state college under the juris diction, management and control of the defendant Board of Trustees of State Institutions of Higher Learning, the same as the University of Mississippi. The Registrar advised plaintiff by letter dated May 9, 1961, that he would receive 48 hours credit for previous college work in accordance with University standards. 4. Plaintiff furnished certificates by 5 citizens of Mississippi attesting to his good moral character and recommending his admission to the University of Mississippi, but none was an alumnus of the Uni versity of Mississippi since plaintiff does not know any such alumni personally and no Negro has ever attended the University of Mississip pi. 5. Plaintiff has been denied admission to the University of 20 Mississippi solely because of his race and color. He has sought ad mission since the February 1961 term. He is duly qualified for admis sion as a transfer student as the letter of May 9, 1961, from the Reg istrar clearly indicates. He made a timely and proper application for admission as a transfer student. The registrar has not advised him that he is in any other respect unqualified for admission as a transfer student although the Registrar has had plaintiff’s application since approximately February 1, 1961, and has acknowledged that plaintiff’ s transcripts of credits from other accredited universities attended by plaintiff have been duly received by him, the Registrar, and contain the required certificate of honorable dismissal and eligibility for readmis sion. 6. There is not sufficient time in which to give the required no tice to each defendant before a hearing can be had on plaintiff’ s motion for preliminary injunction and further irreparable injury and damage will result to plaintiff before that time. 7. The law is well settled that state authorities cannot exclude qualified Negro applicants from state universities of higher learning solely because of race and color. This case does not raise any novel or unsettled questions of law or fact. 8. The Summer Session of the University of Mississippi com mences June 8, 1961. There is no time to appeal to higher university officials or to exhaust any other remedy before that date. The plain tiff is twenty-eight years of age; has an honorable discharge from the 21 United States Air Force; is entitled to an education at the expense of the Federal Government because of his long years of service; and is attempting, in good faith, to complete his education at the earliest possible time and, therefore, wishes to go to college during the sum mer terms as well as during the regular fall and winter terms in order to complete his education as early as possible. Time lost now will be irreparable and irrevocably lost to the plaintiff unless this Court issues a temporary restraining order without notice and a preliminary Injunc tion as prayed for in the complaint. WHEREFORE, plaintiff prays that this Court issue a temporary restraining order without notice and a preliminary injunction, pending the final disposition of this cause, enjoining the defendants, and each of them, their agents, servants, employees, attorneys, successors, and all persons in active concert and participation with them from: (a) refusing to admit the plaintiff to the University of Mississippi for the Summer Session commencing June 8, 1961, upon the same terms and conditions applicable to white students; (b) making the attendance or matriculation of plaintiff condition ed upon terms and conditions not applicable to white students similarly situated, and (c) interfering in any manner with the right of the plaintiff to reg ister at, matriculate in, or attend the University of Mississippi; (d) taking any action or doing any act which will defeat, impair, or frustrate plaintiff’s rights as defined by this Gourt or which will 22 defeat, impair or frustrate any order of this Court securing plaintiff's right. Plaintiff also prays that this Court will grant the plaintiff his costs herein and grant him such other, further, necessary or addition al relief as may appear to a court of equity to be required to secure his admission to the University of Mississippi without regard to his race and color. /S / R. Jess Brown______ _______ R. Jess Brown 1105 1/2 Washington Street Vicksburg, Mississippi /S / Constance Baker Motley Constance Baker Motley Thurgood Marshall 10 Columbus Circle New York 19, New York Attorneys for Plaintiff ***** MOTION FOR ORDER REQUIRING THE DEFENDANT REGISTRAR TO APPEAR FOR THE TAKING OF HIS DEPOSITION ( Title omitted - Filed June 5, 1961) Comes now the plaintiff, by his undersigned attorneys, and moves this Court for an order pursuant to the provisions of Rule 26, Federal Rules of Civil Procedure, requiring the defendant Registrar, Robert Byron Ellis, to appear in Jackson, Mississippi on the 9th day of June, 1961 at o 'clock A, M ., in the forenoon of that day for the pur pose of having his oral deposition taken by the plaintiff's counsel, and 23 as grounds therefor, shows the following: 1» The complaint in this action was filed on May 31, 1961 alleg ing, in essence, that the plaintiff has been denied admission to the Uni versity of Mississippi by the defendant Registrar, and others, solely on account of race and color. 2. With the complaint, plaintiff filed a motion for a preliminary injunction which this Court set for hearing at Biloxi, Mississippi on June 12th. 3. In a letter to plaintiff, dated May 26, 1961, the Registrar ad vised plaintiff that he was denied admission because he has attended Jackson State College, a non-accredited institution, and because he did not have proper certificates from Mississippi citizens, and for other undisclosed reasons. 4. The Federal Rules of Civil Procedure, Rule 26, provide that a party may make pre-trial or pre-hearing discovery. The plaintiff de sires to discover what other reasons the Registrar has for denying plaintiff’ s application for admission to the University of Mississippi be fore the hearing on plaintiff's motion for preliminary injunction on June 12, 1961. 5. There is not sufficient time to take the Registrar’s deposition without an order from this Court since 20 days from the filing of the 24 complaint have not elapsed. /S / R. Jess Brown R. Jess Brown 1105 1/2 Washington Street Vicksburg, Mississippi /S / Constance Baker Motley Constance Baker Motley 10 Columbus Circle New York 19, New York Thurgood Marshall 10 Columbus Circle New York 19, New York Attorneys for Plaintiff ORDER TO SHOW CAUSE (Title omitted - Filed June 5, 1961) Upon the verified complaint filed in this case on the 31st day of May 1961, and the motion for preliminary injunction filed therewith, and the oral application this day made by the plaintiff, for authority to take the deposition of Robert Byron Ellis, it is: ORDERED, that a hearing be had on the motion Meridian Miss at 1:00 P. M ., on the 6th day of June 1961, or as soon there after as counsel can be heard, to determine if an order should be is sued by this Court requiring the defendant to appear in Jackson, Miss issippi on June 9, 1961 at the United States Court House before a duly authorized court reporter for the purpose of having his deposition 25 taken by the plaintiff*s counsel. ORDERED, that service of this order to show cause, together with a copy of plaintiff's motion attached hereto, on the Attorney Gen eral of the State of Mississippi, counsel for defendant Registrar, on or before 6:00 P. M ., Monday, June 5, 1961 be deemed suffi cient service. Issued at 2:00 P. M ., June 5th 1961. /S / S. C. Mize_______ __ United States District Judge O. B. 1961, Pages 226 & 227. NOTICE OF TAKING DEPOSITIONS (Title omitted - Filed June 6, 1961) TO: ATTORNEYS FOR THE PLAINTIFF R. Jess Brown 1105 1/2 Washington Street Vicksburg, Mississippi Constance Baker Motley 10 Columbus Circle New York 19, New York Thurgood Marshall 10 Columbus Circle New York 19, New York DEFENDANTS Mr. Charles Dickson Fair Louisville Mississippi 26 Dr. Euclid Eay Jobe Jackson Mississippi Mr. Edgar Ray Izard Hazlehurst Mississippi Mr. Ira Lamar Morgan Oxford Mississippi Mr. Malcolm Mette Roberts Hattiesburg Mississippi Mr. William Orlando Stone Jackson Mississippi Mr. S. R. Evans Greenwood Mississippi Dr. Verner Smith Holmes McComb Mississippi Mr. James Napoleon Lipscomb Macon Mississippi Mr. Tally D. Riddell Quitman Mississippi Mr. Harry Gordon Carpenter Rolling Fork Mississippi Mr. Robert Bruce Smith, II Ripley Mississippi Mr. Thomas Jefferson Tubb West Point Mississippi Dr. J. D. Williams University of Mississippi Oxford, Mississippi 27 Dr. Arthur Beverly Lewis Dean of the College of Liberal Arts University of Mississippi Oxford, Mississippi Mr. Robert Byron Ellis Registrar University of Mississippi Oxford, Mississippi BOARD OF TRUSTEES OF THE STATE INSTITUTIONS OF HIGHER LEARNING WOOLFOLK STATE OFFICE BUILDING JACKSON, MISSISSIPPI You will please take notice that the Defendant, LEON LOWREY, Olive Branch, Mississippi, and M, M. ROBERTS of Hattiesburg, Mississippi will take the deposition, by oral examination, pursuant to the provisions of the Federal Rules of Civil Procedure, of the Plain tiff, JAMES H. MEREDITH, in the Petit Jury Room of the Federal Court Building in Meridian, Mississippi, at eleven o ’clock A. M ., 8 June 1961. The deposition will be taken before an officer duly qualified to administer oaths. LEON LOWREY, DEFENDANT JOE T. PATTERSON, ATTORNEY GENERAL OF THE STATE OF MISSISSIPPI, DUGAS SHANDS, ASSISTANT ATTORNEY GENERAL OF THE STATE OF MISSISSIPPI, PETER M. STOCKETT, JR ., SPECIAL ASSISTANT ATTORNEY GENERAL OF THE STATE OF MISSISSIPPI, AND EDWARD L. CATES, ASSISTANT ATTORNEY GENERAL OF THE STATE OF MISSISSIPPI, ATTORNEYS FOR 28 ALL OF THE DEFENDANTS BY Duaas Shands________________ ___ DUGAS SHANDS, ASSISTANT ATTORNEY GENERAL OF THE STATE OF MISSISSIPPI, ONE OF THE ATTORNEYS FOR ALL OF THE DEFENDANTS ATTORNEYS' S CERTIFICATE I, Dugas Shands, Assistant Attorney General of the State of Mississippi, one of the attorneys in the above captioned matter for all of the Defendants and the Defendant, LEON LOWREY, do hereby cer tify that I have this day served upon the Plaintiff, JAMES H.MERE^ DITH, a true and correct copy of the foregoing Notice of the Taking of the Deposition of the Plaintiff, JAMES H. MEREDITH, by personally serving two copies of the said notice upon R. Jess Brown, one of the attorneys of record for the Plaintiff at Jackson, Mississippi, and I hereby further certify that I have served upon all of the other Defen dants true and correct copies of the foregoing Notice of the Taking of the Deposition of the Plaintiff, JAMES H. MEREDITH, by mailing postage prepaid true copies of the said Notice to all of the Defendants except LEON LOWREY. Done this the 5th day of June, 1961. /S / Duaas Shands _________ DUGAS SHANDS, ASSISTANT ATTORNEY GENERAL OF THE STATE OF MISSISSIPPI, ’ ONE OF THE ATTORNEYS FOR ALL OF THE DEFENDANTS 29 PLAINTIFF' ,3 OBJECTION TO TAKING OF DEPOSITION (Title omitted - Filed June 6* 1961) Comes now the plaintiff, by his undersigned attorneys, and ob jects to the taking of his deposition pursuant to notice served upon his attorneys on June 5, 1961 by defendant, Leon Lowrey. Defendant, Leon Lowrey proposes to take plaintiff’ s deposition at Meridian, M iss issippi, on June 8, 1961. As grounds for his objection plaintiff shows the following: 1. 20 days have not elasped since the filing of plaintiffs com plaint and pursuant to provision of R. 26, FRCP, an order of this court must be entered before the taking of plaintiff’ s deposition. 2. The plaintiff objects to the taking of his deposition in Merid ian, Mississippi and offers to have his deposition taken before a duly qualified reporter in Jackson, Mississippi, where he resides, on June 9, 1961, at 2:00 o ’clock p. m ., in the UNITED STATES COURT HOUSE, at the expense of defendant Lowery, before a duly sworn authorized court reporter. R. Jess Brown 1105 1/2 Washington Street Vicksburg, Mississippi Constance Baker Motley 10 Columbus Circle New York 19, New York By: / s / R. Jess Brown_________ R. Jess Brown, One of the Attorneys for the Plaintiff 30 Thurgood Marshall 10 Columbus Circle New York 19, New York Attorney's Certificate I, Pv. Jess Brown, one of the attorneys for the Plaintiff in the above styled and numbered cause, do hereby certify that I have served upon the defendant, Leon Lowrey, a true and correct copy of the fore - going objection to taking deposition of plaintiff, by personally serving two copies of said objection upon Honorable Dugas 3hand_, one of the attorneys of record for said defendant and others in said cause. R. Jess Brown_____________ R. Jess Brown, One of the Attorneys for Plaintiff on behalf of himself and others similarly situated O R D E R (Title omitted - Filed June 3, 1961) This day came on to be heard plaintiff's motion for leave or or der of this Court to take the deposition of Robert Byron Ellis, one of the defendants and Registrar of the University of Mississippi, on June 9, 1961, at Jackson, Mississippi, and it appearing to the Court that this suit was filed on May 31, 1961, that the notice of the presentation of such motion was served upon one of the attorneys of record of said de fendant between the hours of 5 o'clock and 6 o'clock P. M. on Monday, 31 June 5, 1961, and the said parties plaintiff and defendant, Ellis, having each appeared in open Court by an attorney of record and announced ready on said motion, and the said Ellis opposed the granting of said motion, and the Court having read and considered said motion, and the pleadings heretofore filed, and having heard arguments of counsel, and being fully advised in the premises, it is considered by the Court and the Court doth hereby order, adjudge and decree that said motion be and the same is hereby denied, Ordered, adjudged and decreed at Meridian, Mississippi, this the 6th day of June, 1961. / s / S, C, Mize_____________ S. C. Mize, U. S. District Judge Southern District of Mississippi OK as to Form: / s / Constance Baker Motley Attorney for Plaintiff O. B. 1961, Page 232 & 233 O R D E R (Title omitted - Filed June 8, 1961) This day came on to be heard plaintiff’s written objection to the taking of the deposition of the plaintiff, James H. Meredith, at Merid ian, Mississippi, at 11 o ’clock A. M. on June 8, 1961, in the petit jury room on the third floor of the Federal Court Building, by and on behalf of two of the defendants, M. M. Roberts and Leon Lowrey, and it 32 appearing to the Court that notice of the taking of said deposition was served by personally delivering two true copies thereof to R. Jess Brown, one of the attorneys of record for the said plaintiff at Jackson, Mississippi, between the hours of 5 o'clock and 6 o'clock P. M. on Monday, June 5, 1961, and said plaintiff and said defendants having appeared in open Court and announced ready, and the Court having read and considered said notice and plaintiff's written objection thereto, and the pleadings heretofore filed, and having heard argument of said coun sel thereon, and being fully advised in the premises, it is considered by the Court and the Court doth hereby order, adjudge and decree that plaintiff's objection to the taking of said deposition be and the same is hereby overruled, and the said deposition of said plaintiff shall be tak en according to said notice, but the said defendants shall pay to the said plaintiff mileage from Jackson, Mississippi, to Meridian, Mississippi, at the rate of ten cents (10$) per mile and Five Dollars ($5.00) per day for subsistence, and which shall be paid upon presentation by the plain tiff or his attorney of record of a written statement showing the amount of such mileage and said subsistence. Ordered, adjudged and decreed, this the 6th day of June, 1961. / s / S. C. Mize______________________ S. C. Mize, U. 8. District Judge Southern District of Mississippi OK as to Form: / s / Constance Baker Motley Attorney for Plaintiff O.B. 1961, Page 234 & 235 33 MOTION FOR PRODUCTION (Title omitted - Filed June 20, 1961) Plaintiff, James Howard Meredith, moves the Court for an order requiring defendants Charles Dickson Fair, et a l . : 1. To produce and to permit plaintiff's counsel or such per sons as plaintiff's counsel shall employ for that purpose, to inspect and to copy all records, including correspondence, papers, applications, memoranda and all other documents and reports relating to the appli cation and admission of each student to the University of Mississippi for the: a. Second Semester of the 1960-1961 school year; b. the Summer Sessions (First and Second) of the 1961 school year; c. Fall Semester of the 1961-1962 school year. 2. To permit plaintiff to enter the premises and proper buildings of the University of Mississippi located in Oxford, Mississip pi, or at any other place within the State of Mississippi, for the pur pose of inspecting and copying those records and documents set forth in Paragraph 1 above. Defendants have the possession, custody, or control of each of the foregoing records and documents. Each of them constitutes or con tains evidence relevant and material to a matter involved in this action, 34 as is more fully shown in Exhibit A hereto attached. / s / Derrick A. Bell Jr. Derrick A. Bell, Jr. Constance Baker Motley Thurgood Marshall 10 Columbus Circle New York 19, N. Y. R. Jess Brown 1105 1/2 Washington Street Vicksburg, Mississippi Attorneys for Plaintiff NOTICE OF MOTION Please take notice, that the undersigned will bring the above motion on for hearing before this Court at the United States Court House, Biloxi, Mississippi, on the 2Sth day of June, 1961, at 10 o'clock in the forenoon of that day, or as soon thereafter as counsel can be heard. / s / Derrick A Bell Jr. Attorney for Plaintiff 35 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI JACKSON DIVISION 1 JAMES HOWARD MEREDITH, on behalf of ) himself and others similarly situated, ) ) Plaintiff, } ) Civil Action v* > No. 3130 CHARLES DICKSON FAIR, President of the ) Board of Trustees of State Institutions ) of Higher Learning of the State of ) Mississippi, Louisville, Mississippi, ) et a l . , ) ) Defendants. ) _______________________________________ _________________) AFFIDAVIT IN SUPPORT OF MOTION FOR PRODUCTION OF DOCUMENTS Exhibit A STATE OF NEW YORK ) ) ss: COUNTY OF NEW YORK ) Constance Baker Motley, being duly sworn, deposes and says: 1. I am one of the attorneys for the plaintiff, James Howard Meredith, and make this affidavit in support of a motion for discovery and inspection. 2. The defendants, including the Chancellor, the Registrar 36 and the Dean of the College of Liberal Arts of the University of M iss issippi are officers of the University and have in their possession, cus tody or control, all the records and documents requested in the plain tiff's motion for discovery. 3. The suit seeks an injunction against the defendants en joining them from denying to plaintiff an education at the University of Mississippi solely on account of race and color. 4. After receiving the plaintiff's application for admission to the University on or about February 1, 1961, the defendant Regis trar in a telegram on February 4, 1961, informed plaintiff that: "it has been found necessary to discontinue consideration of all applications for admission or registration for the second semester which were received after January 25, 1961." 5. Then on May 26, 1961, the defendant Registrar advised plaintiff that he was denied admission because he has attended Jackson State College, a non-accredited institution, and because he did not have proper certificates from Mississippi citizens, and for other undisclosed reasons. 6. It is the plaintiff's belief that plaintiff has met all consti tutionally required eligibility requirements for entrance to the Univer sity of Mississippi, that his qualifications are substantially similar to many persons admitted to the University, and that the sole reason for his exclusion is race or color. 7. This case has been set for trial on July 10, 1961. 37 8. Each of the applications, letters, memoranda, books, records and other documents pertaining to the application of students to the University during the Second Semester of the 1960-1961 school year, and the Summer Session of the 1961 school year and Fall Session of the 1961-1962 school year constitutes or contains evidence relevant and material to one or more of the issues in this action, in that: (a) they will enable plaintiff to determine whether any students were accepted by the University of the Second Semester 1960- 1961 school year after January 25, 1961; (b) they will enable plaintiff to determine whether all white students submitted certificates of recommendation from five alumni, and what, if any, procedures were used to help those students who did not know alumni who would provide such certificates; (c) they will enable plaintiff to determine whether the University accepted white transfer students from white schools which are unaccredited. / s / Constance Baker Motley Constance Baker Motley Sworn to before me on this 19th day of June . 1961. / s / Marjorie H. Doswell Notary Public 38 Marjorie H. Doswell Notary Public, State Of New York N o.31-6082800 Qualified in New York County Commission Expires March 30, 1962 (This instrument carries proper certificate of service - which is not copied here.) >;<5S5s)c 4:;!i NOTICE OF TAKING DEPOSITION ON ORAL EXAMINATION (Title omitted - Filed June 23, 1961) To the Honorable Dugas Shands, Assistant Attorney General of the State of Mississippi, one of the attorneys for the defendants in the above named action: Please take notice that the plaintiff herein will take in the above- entitled action, to be used as authorized by the Federal Rules of Civil Procedure, the deposition of Robert B .Ellis, Registrar of the Univer sity of Mississippi, whose address is the University of Mississippi, Oxford, Mississippi, upon oral examination, before Mr. D. Jordan, the Official Court Reporter for the United States District Court for the Southern District of Mississippi, who is not of counsel or attorney for either of the parties to this action, nor a relative or employee of such counsel or attorney, nor financially interested in this cause, on the 30th day of June, 1961, at 10:00 o ’clock in the forenoon of that day, in the Grand Jury Room on the third floor of the United States Courthouse in Biloxi, Mississippi, at which time and place you are hereby notified to appear and take such part in said examination as you may be advised 39 and as shall be fit and proper. Please take further notice that the above designated party, Robert B. Ellis, Registrar of the University of Mississippi, is hereby requir ed to produce upon such examination the following records, papers and documents: 1. The application for admission to the University of Mississippi of the plaintiff, James Howard Meredith, and all papers and writings attached thereto. 2. All correspondence between the Registrar and the plaintiff, James Howard Meredith. 3. All correspondence and memoranda between the Registrar and other officials, faculty and employees in regard to the plaintiff. 4. All transcripts and other written documents received by the Registrar from colleges previously attended and presently attended by plaintiff. / s / Constance Baker Motley Constance Baker Motley 10 Columbus Circle June 22, 1961 New York 19, New York Attorney for Plaintiff ***>!<* MOTIONS OF DEFENDANT, ROBERT B.ELUS, REGISTRAR OF THE UNIVERSITY OF MISSISSIPPI, TO VACATE PLAINTIFF'S NOTICE OF TAKING HIS DEPOSITION, AND THE TAKING THEREOF, AND TO SUSPEND OR STAY THE TAKING OF SUCH DEPOSITION._________ (Title omitted - Filed June 27, 1961) Now comes one of the defendants in this cause, Robert B. Ellis, 40 Registrar of the University of Mississippi, pursuant to Rule 30 A and B of the Federal Rules of Civil Procedure, and without waiving any right, privilege or immunity which he has or may have in this cause and upon the face of the record in this cause and the matters herein set out, and moves the Court to (1) vacate and set aside plaintiff’s notice and the taking of this defendant’s deposition thereunder, in accord with which plaintiff proposes to take said deposition, and to set the hearing on de fendant’ s foregoing motion for a later date, and further moves the Court (2) to enter an order, as an emergency matter, suspending or staying the taking of said deposition on June 30, 1961, as noticed by plaintiff, and for grounds thereof say: 1. On June 22, 1961, plaintiff through one of his counsel mailed a notice addressed to Dugas Shands, Assistant Attorney General of the State of Mississippi, one of the attorneys for the defendants in this cause, that plaintiff proposed to take the deposition of said Robert B. Ellis at ten o ’clock A, M. on June 30, 1961, in the Grand Jury Room on the third floor of the United States Court House in Biloxi, Mississippi. Said notice was sent by airmail special delivery and received by said Dugas Shands on June 23, 1961. 2. This action is now in the process of being tried by this Court upon plaintiff’ s motion for a temporary injunction. On June 12, 1961, plaintiff elected to prosecute his motion for a temporary injunction by producing oral testimony thereon. Plaintiff had subpoenaed said Ellis as a witness in such prosecution and called and placed him on the stand 41 under oath as an adverse witness and proceeded to examine Mm. Upon certain objections being made by the defendants, which were sustained by the Court, plaintiff through his counsel withdrew the said Ellis from the stand and placed thereon the plaintiff Meredith and said counsel con ducted her direct examination of him, all as shown by said record. Dugas Shands, one of the attorneys for defendant proceeded to cross- examine plaintiff, and such cross-examination has not been completed and the said Meredith is still, proceeding-wise, on the stand in the course of said cross-examination. Under the circumstances reflected by the record, the said hearing was recessed. 3. Upon the record in this cause, the taking of the deposition of said Ellis is neither contemplated, permitted or authorized by the Fed eral Rules of Civil Procedure, and to permit same would interupt the orderly process of the proceeding in this cause and constitute a grave injustice, oppression or annoyance to said Ellis, and in fact to the other defendants herein. 4. Defendant is advised and believes that counsel for plaintiff is scheduled in attendance in deposition proceedings in another case in which they represent the plaintiffs in Biloxi, Mississippi, on Thursday, June 29, 1961, and which proceedings are now scheduled to be carried on June 29 and 30. 5. Attorneys for said Ellis and the other defendants have been and are as diligent as humanly and physically possible in and about the 42 handling and preparation of this cause and other causes in this Court for which they are responsible as attorneys of record. 6. Dugas Shands, Assistant Attorney General of the State of Mississippi, has been assigned and has been and is acting as leading counsel basically responsible for the actual handling and trial of this cause. Defendant desires that he continue to so act as said counsel and is advised and believes that the other defendants herein likewise desire that he be so continued. Defendant is advised and believes that said attorney of record, Dugas Shands is physically unable to attend a taking of this defendant’ s deposition on said June 30, 1961, and to then and there represent this defendant and the other defendants interested therein; defendant is fur ther advised and believes that to require the said attorney of record to prepare for and attending said hearing would jeopardize the health of the said Dugas Shands, and defendant attaches hereto affidavit of said attorney of record in support of these motions as Exhibit A hereto. Should said deposition be taken on June 30, 1961, and said attorney Dugas Shands not be present and actively represent him and the other said defendants, a grave injustice would be done to this and the other defendants and he believes that no other of his attorneys of record could become properly acquainted with this cause in time to prepare for the said hearing. Defendant says that these motions are not made for delay but so that justice may be done. 43 In view of the foregoing, defendant says that this motion presents an emergency matter which should be acted upon immediately by the Court upon presentation of these motions. In view of the foregoing, defendant requests the Court to sustain the motions of this defendant hereinabove set out. Respectfully submitted. / s / Robert B. Ellis ROBERT B. ELLIS, Registrar of the University of Mississippi, a defendant Joe T. Patterson, Attorney General of the State of Mississippi, Peter M. Stockett, Jr., Special Assistant Attorney General of the State of Mississippi, Edward L. Cates and Dugas Shands, Assistant Attorneys General of the State of Mississippi Bv / s / Dugas Shands DUGAS SHANDS, Assistant Attorney General of the State ****»?£ Mississippi EXHIBIT "A" AFFIDAVIT STATE OF MISSISSIPPI COUNTY OF HINDS This day personally appeared before me the undersigned author ity, Dugas Shands, who after being by me first duly sworn on oath says: I am Assistant Attorney General for the State of Mississippi and 44 have so been for some several years and am fifty-five years of age. I have been assigned as and have been acting as leading counsel basically charged with the responsibility of the handling and defense of the defendants in the case of Meredith v. Fair, et al, Civil Action No. 3130 upon the docket of this Court. I am in the same position with reference to other law suits insofar as this office is concerned now pending in this Court and one in the Northern District of Mississippi, all of which involve important, far-reaching and complicated questions of Constitutional law and fact. I have other immediately related official duties to perform. I have been and intend to continue to be as diligent as humanly possible in and about the proper disposition, handling and progress of the Meredith case and the other cases and duties as I am capable of. My duties and responsibilities have necessarily required long and intensive hours of work and effort, together with numerous trips out of town in connection with said cases. As a result of my heavy work load and efforts to properly dis charge my obligations and duties in the above matters, which I am glad to do, my physical well-being has suffered and shortly before June 16, 1961, I developed an elevation of blood pressure and hypertension, head aches and a general intense fatigue to the extent that I was forced to seek medical attention by my regular physician, Dr. Raymond F. Gren- fell, m . D. of Jackson, Mississippi, and who treated me therefor. On Friday, June 16, 1961, he required that I enter the Baptist Hospital 45 for treatment where I remained as a patient until shortly after noon of June 21, 1961. While in the hospital and since then, I was and still am under the care of Dr. Grenfell. I recognize the importance of the Meredith suit not only to the plaintiff but also the Gourt and the defendants. I understood and recog nize that the answer of the defendants is due to be filed not later than on June 28, 1961, inclusive of such motions and objections as the defen dants might properly have to the complaint filed against them. I believe the defendant have valid defenses to the complaint of the plaintiff Meredith and desire only a reasonable opportunity that they be pled and presented to this Gourt. I believe and represent to the Gourt that my physical condition is such that since my release from the hospital, I have been and am unable to properly prepare the pleadings necessary to adequately present the defenses of the defendants and to attend to the other matters mentioned in the motions of the defendant, Robert B. Ellis, as to his deposition. I have done my best to properly prepare the pleadings for the defendants to file on or before June 28, but such is humanly impossible. I believe my physical well-being will be gravely jeopardized unless the relief r e quested by the motions to which this Affidavit is attached and made an exhibit is granted. My said Dr. Grenfell has advised me that I am physically unable to do the work which I know is necessary to be done in order to prepare and file the answer of the defendants with proper motion by June 28, 1961, and that I am physically unable to attend the 46 the taking of the deposition by plaintiff from the said Ellis on June 30, 1961, as noticed by the plaintiff and that I am physically unable to do the work which I know is necessary to prepare for presentation and present the objection of the said Ellis at the taking of his deposition on June 30, 1961; my said doctor has advised me that my physical health and well-being will be jeopardized if I be required to proceed to do the things and matters relieved from which is requested by the motions to which this Affidavit is attached unless I am given a reasonable period of time within which to overcome my above mentioned illness and to regain my strength and stamina. I am still weak and have not recover ed from the condition which caused me to be placed in the hospital and receive his care and attention. I have done and will do my very best to accomplish as speedy a recovery as possible under the circumstances. I regret my physical condition is as it be, but I believe that neither the plaintiff nor the Cburt would want me to proceed without making these facts known and having my clients request the relief asked for in each of the motions to which this Affidavit is attached. I have read the motions to which this Affidavit is attached and they are true and correct as written and the relief requested is necessary to avoid injury to and jeopardizing my health. In the event the Court or counsel for plaintiff desire that I furnish a certificate from said Dr. Raymond F. Grenfell, I will be glad to do so 47 upon the request of the Court or counsel for Plaintiff. / s / Dugas Shands Dugas Shands SWORN TO AND SUBSCRIBED BEFORE ME this the 27th day of June, 1961. / s / Heber Ladner _________ SECRETARY OF STATE of the State of Mississippi (SEAL) My Cbmmission Expires Jan. 1964 (This instrument carries proper certificate of service which is not copied here.) MOTION OF DEFENDANTS FOR EXTENSION OF TIME WITHIN WHICH TO PLEAD (Title omitted - Filed June 27, 1961) Without waiving or intending to waive any right, privilege or im munity which they may have under the Federal Rules of Civil Procedure now come all defendants in the above styled cause, and move the Court to extend to and including July 13, 1961, the time within which defend dants may plead to plaintiff's complaint herein filed against them just as validly as they would have been able to do on or before June 28,1961, and for grounds thereof would show: 1. In accord with Federal Rules of Civil Procedure and prior direction of this Court the defendants were required to file their answer, inclusive of any motions and objections thereto, on or before June 28, 1961. 48 2. Dugas Shands, Assistant Attorney General of Mississippi, is the person who has been assigned as and who has been acting as leading counsel for these defendants in this case, with the basic responsibility therefor, and he and the other counsel for defendants have exercised all due diligence in the expeditious disposition of this cause. 3. Defendants are advised and believe that the said Dugas Shands is physically unable to properly prepare and file their pleadings and motions in this cause on or before June 28, 1961, and that he has done his very best so to do and that if he be required to do so in spite of his physical condition his health and well-being will be seriously jeopardiz ed as shown and reflected by the affidavit of the said Shands attached hereto as Exhibit "A" and made a part hereof. 4. Defendants realize and recognize the importance of this suit not only to the plaintiff but to the Court and to these defendants, and it is not their desire to hinder or delay the proper disposition of this cause, but they are forced to make this motion for an extension of time because unless it is granted and the said Shands given a reasonable op portunity to properly represent them they will suffer grave damage and injustice, and they desire that he continue to handle this matter and act for them and represent them. 5 . That the presentation of this motion to the Court and the ac tion of the Court hereon constitutes an emergency matter in view of the physical condition of the said Shands and that die answer, together with the motions and objections to be properly included therein, must be 49 filed not later than tomorrow, June 28, 1961, under said Federal Rules of Civil Procedure and prior direction of this Court. 6. That an extension of time to and including July 13, 1961, is not an unreasonable extension of time as it constitutes an extension of only fifteen (15) days. 7. No prior extension of time has been requested by or granted to the defendants. WHEREFORE, defendants respectfully request that this Court consider and act upon this motion as an emergency matter and grant the extension herein requested. Respectfully submitted, ALL DEFENDANTS BY JOE T. PATTERSON, ATTORNEY GENERAL PETER M. STOCKET, JR. SPECIAL ASSISTANT ATTORNEY GENERAL EDWARD L. CATES AND DUGAS SHANDS ASSISTANT ATTORNEYS GENERAL BY / s / Duaas Shands_________ __ Dugas Shands Assistant Attorney General C E R T I F I C A T E I, Dugas Shands, do hereby certify that I have this day filed the original in the office of the Clerk of this Court at Jackson, Mississippi, This the 27th day of June, 1961. / s / Dugas Shands 11 ' Dugas Shands 50 EXHIBIT !IA» AFFIDAVIT STATE OF MISSISSIPPI COUNTY OF HINDS This day personally appeared before me the undersigned authority Dugas Shands, who after being by me first duly sworn on oath says: I am Assistant Attorney General for the State of Mississippi and have so been for some several years and am fifty-five years of age. I have been assigned as and have been acting as leading counsel basically charged with the responsibility of the handling and defense of the defendants in the case of Meredith v. Fair, et al, Civil Action No. 3130 upon the docket of this Court. I am in the same position with reference to other law suits insofar as this office is concerned now pending in this Court and one in the Northern District of Mississippi, all of which involve important, far-reaching and complicated questions of Constitutional law and fact. I have other immediately related official duties to perform. I have been and intend to continue to be as diligent as humanly possible in and about the proper disposition, handling and progress of the Meredith case and the other cases and duties as I am capable of. My duties and responsibilities have necessarily required long and intensive hours of work and effort, together with numerous trips out of town in connection with said cases. As a result of my heavy work load and efforts to properly dis 51 charge my obligations and duties in the above matters, which I am glad to do, my physical well-being has suffered and shortly before June 16, 1961, I developed an elevation of blood pressure and hypertension, head aches and a general intense fatigue to the extent that I was forced to seek medical attention by my regular physician, Dr, Raymond F.Gren fell, M, D. of Jackson, Mississippi, and who treated me therefor. On Friday, June 16, 1961, he required that I enter the Baptist Hospital for treatment where I remained as a patient until shortly after noon of June 21, 1961. While in the hospital and since then, I was and still am under the care of Dr. Grenfell. I recognize the importance of the Meredith suit not only to the plaintiff but also the Court and the defendants. I understood and recog nize that the answer of the defendants is due to be filed not later than on June 23, 1961, inclusive of such motions and objections as the defen dants might properly have to the complaint filed against them. I believe the defendant have valid defenses to the complaint of the plaintiff Meredith and desire only a reasonable opportunity that they be pled and presented to this Court. I believe and represent to the Court that my physical condition is such that since my release from the hospital, I have been and am unable to properly prepare the pleadings necessary to adequately present the defenses of the defendants and to attend to the other matters mentioned in the motions of the defendant, Robert B. Ellis, as to his deposition. I have done my best to properly prepare the pleadings for the defendants 52 to file on or before June 28, but such is humanly impossible. I believe my physical well-being will be gravely jeopardized unless the relief re quested by the motions to which this Affidavit is attached and made an exhibit is granted. My said Dr. Grenfell has advised me that I am physically unable to do the work which I know is necessary to be done in order to prepare and file the answer of the defendants with proper motion by June 28, 1961, and that I am physically unable to attend the taking of the deposition by plaintiff from the said Ellis on June 30, 1961, as noticed by the plaintiff and that I am physically unable to do the work which I know is necessary to prepare for presentation and present the objection of the said Ellis at the taking of his deposition on June 30,1961; my said doctor has advised me that my physical health and well-being will be jeopardized if I be required to proceed to do the things and mat ters relieved from which is requested by the motions to which this Affidavit is attached unless I am given a reasonable period of time with in which to overcome my above mentioned illness and to regain my strength and stamina. I am still weak and have not recovered from the condition which caused me to be placed in the hospital and receive his care and attention. I have done and will do my very best to accomplish as speedy a re covery as possible under the circumstances. I regret my physical con dition is as it be, but I believe that neither the plaintiff nor the Court would want me to proceed without making these facts known and having my clients request the relief asked for in each of the motions to which 53 this Affidavit is attached. I have read the motions to which this Affidavit is attached and they are true and correct as written and the relief requested is neces sary to avoid injury to and jeopardizing my health. In the event the Court or counsel for plaintiff desire that I furnish a certificate from said Dr. Raymond F. Grenfell, I will be glad to do so upon the request of the Court or counsel for Plaintiff. / s / Dugas Shands. __________ DUGAS SHANDS SWORN TO AND SUBSCRIBED BEFORE ME this the 27th day of June* 1961. / s / Heber Ladner________ _ SECRETARY OF STATE of the (SEAL) State of Mississippi My Cbmmission Expires Jan. 1964 ( This instrument carries proper certificate of service which is not copied here.) ***** O R D E R (Title omitted - Filed June 27, 1961) This day came on to be heard the motion of all defendants in this cause for an extension of time within which to plead in this cause by filing their answer, together with all motions and objections which they may desire to include therein, on or before July 13, 1961, with affida vit of Dugas Shands, one of the attorneys for the defendants, attached hereto, and the Gourt having read and considered said motion and 54 affidavit, and it having been stated that this is an emergency matter as the answer and motions of the defendants are otherwise due to be filed not later that June 28, 1961, and said Shands having appeared before the Court and offered himself for questioning by the Court and the Court having observed the said Shands and the statement from him, and the Court having considered this matter and being fully advised in the pre mises, it is considered by the Court and the Gourt doth hereby order, adjudge and decree that defendants' motion for an extension of time does present an emergency matter and that the said Shands is physically un able to prepare and file defendants' answer, and motions to be included therein, and that to so require him would jeopardize his health and well being and , therefore, the motion for extension of time is hereby grant ed and the defendants are allowed to file their answer or answers, with such motions and objections as they desire to incorporate therein, on or before July 13, 1961. Said Shands having offered to furnish the Court or plaintiff's coun sel with a certificate from his doctor, who is Dr. Raymond F.Grenfell, under whose care the said Shands now is, it is further ordered by the Court that if plaintiff's counsel desires such a certificate that they noti fy the said Shands and that he furnish them therewith. No certificate was requested. ORDERED and ADJUDGED, this the 27th day of June, 1961. / s / S. C. Mize U. S. District JudgeO. B.1961,pp.281&282 55 O R D E R (Title omitted-Filed June 27, 1961) This day came on to be heard the motions of Robert B. Ellis, Registrar of the University of Mississippi, one of the defendants herein, together with affidavit of Dugas Shands, one of his attorneys of record attached hereto as Exhibit "Al!, and which motions request the Court to vacate and set aside plaintiff's notice of taking the deposition of said Robert B. Ellis on June 30, 1961 at Biloxi, Mississippi, and the taking of said deposition thereunder, and to set a hearing on defendant's mo tion presenting his objections thereto for a later date, and the further request of defendant to suspend or stay the taking of said deposition on June 30, 1961, as notice by plaintiff, and which motions and requests are made to the Court as emergency matters in view of the time ele ment involved, and the affidavit of the said Dugas Shands representing that he is physically unable and there is not sufficient time to properly prepare and present the objections to the taking of said deposition on June 30, 1961, and that he is physically unable to prepare for and at tend the taking of said deposition on June 30, 1961, as notice by plain tiff, and the said Dugas Shands having appeared before the Court and offered himself for questioning by the Court and having made an oral statement, and a showing having been made that the health and well being of the said .Shands would be jeopardized unless the said motions are granted, and the Court having observed said Shands and being fully advised in the premises, it is considered by the Court and the Court 56 doth hereby order, adjudge and decree that an emergency exists and the said Shands is not physically able to properly prepare and present the objections of said defendants to the taking of said deposition on be before June 30, 1961, and is not physically able to attend and repre sent the said defendant in the taking of the deposition of the defendant, Ellis, by the plaintiff on June 30, 1961, as notice by plaintiff, and said motions are hereby sustained and the objection of the defendant, Ellis, by way of motion to vacate the notice of and the taking of the deposition of the said Ellis will be set for hearing in the near future at a date to be fixed by the judge, and the taking of the said deposition of the said Ellis on June 30, 1961 at Biloxi, Mississippi, is hereby suspended, stayed and ordered by the Court not to be taken at said time and place, and that it be not taken until after the Court acts upon the aforesaid objec tion by way of motion by the said Ellis. The said Shands having stated that if the Court or the parties de sire to be furnished with a certificate of his doctor, who is Dr. Ray mond B. Grenfell, under whose care the said Shands now is, he will furnish same, and the Court doth further order that in the event plain tiff’ s counsel desires to be furnished with such doctor's certificate they notify the said Shands and he shall, upon such request, furnish them with such certificate. (No certificate was requested.) ORDERED and ADJUDGED this the 27th day of June, 1961. O.B. 1961, pp. 283,284, &285 u. 4'. District Judge 57 MOTION FOR PRELIMINARY INJUNCTION (Title omitted - Filed June 29, 1961) Comes now the plaintiff by his undersigned attorneys and moves this court for a preliminary injunction pursuant to the provisions of Rule 65, Federal Rules of Civil Procedure, enjoining the defendants, and each of them, from refusing to admit him to the second summer session at the University of Mississippi, commencing on July 17th, 1961, solely because of his race and color and as grounds therefore show the following: 1. The complaint in this action was filed on May 31, 1961, with a motion for temporary injunction which came on for hearing on June 12, 1961. 2. On June 12, 1961, after a day of hearing the court discontin ued the hearing on the motion for preliminary injunction and set the case for trial on July 10, 1961. 3. On June 12, the court also gave the defendants until June 22nd to file any motions directed to the complaint and until June 28, to file their answers, same being due under the rules on June 20th. 4. On June 27, 1961, defendants moved the court for an order ex tending the time in which to answer, for fifteen days, on the ground that one of the attorneys for the defendants has been ill. This motion was granted. 5. The plaintiff sought admission to the second semester of the 58 1960-1961 school year which commenced on February 8, 1961. His ad mission was denied on the alleged ground his application was received after January 25, 1961. He then requested consideration of his applica tion for the first summer session, beginning June 8, 1961, and was not denied admission to the first summer session until May 26, on which day he received a letter from the registrar, dated May 25, (Exhibits?. P i 's . ) denying his admission on the ground that he is now attending a non-accredited institution, Jackson State College for Negroes, a state institution of higher learning under the jurisdiction, management, and control of the defendant Board of Higher Learning of the State of M iss issippi, which also has jurisdiction, management, and control over the University of Mississippi, which is limited to white students, and on the ground that the plaintiff failed to furnish the necessary alumni certifica tes attesting to his good moral character and recommending his admis sion to the University as required by the catalog of the University of Mississippi, and on the ground of other reasons which were not disclos ed. 6. Upon the hearing on June 12, 1961, the testimony was uncon tradicted that the plaintiff meets all of the requirements for admission to the University of Mississippi as a transfer student in that he has at tended institutions of higher learning other than Jackson State College, for which the registrar advised he would receive 48 hours credit in a letter to the plaintiff dated May 9, 1961, (Exhibit 21, Plaintiff). 59 7. The racial policy of the State of Mississippi with respect to education for Negroes is clear from reference to the statutes of the State of Mississippi, of which this court takes judicial notice, specifi cally, Mississippi Constitution, Article S, Section 207, Title 24, Miss. Code Ann. (1942) p.p. 6620 .5 , 6328-03, 6694, 6703,6711, 6714, 6726.^ as amended, and Title 17, Miss. Code Ann. (1942), p. 4065.3, as amen ded. 8. The plaintiff has already lost, irretrievably, his right to at tend the University of Mississippi for the second semester of the 1960- 1961 school year, for the first summer session which began June 8, 1961, and shall forever lose the right to attend the second term of the summer session which begins July 17, 1961, unless this court hears and determines this motion for preliminary injunction. 9. The defendants have had the plaintiffs’ application for admis sion since February 1, 1961. They turned down his application for ad mission on May 25, 1961, for the reason stated in the letter of that date. If the State had any valid reason for excluding the plaintiff from the Uni versity of Mississippi, other than his race or color, the State has had more than sufficient time since February 1, 1961, to make that reason known to the plaintiff and to this court. Because the State has no valid reason for excluding the plaintiff, the plaintiff has a right to a prelimi nary injunction. WHEREFORE, plaintiffs pray that this court will issue an order 60 enjoining the defendants and each of them from refusing to admit the plaintiff to the second summer session at the University of Mississip pi commencing on July 17, 1961, solely because of his race and color, and from requiring him to furnish certificates from five alumni of the University of Mississippi as a condition of his admission, and from r e fusing to admit him on the ground that he is now attending a non- accredited institution. / s / Constance Baker Motley Constance Baker Motley Derrick A. Bell, Jr. Thurgood Marshall 10 Columbus Circle New York 19, N. Y. R. Jess Brown 1105 1/2 Washington Street Vicksburg, Mississippi Attorneys for Plaintiff NOTICE OF MOTION TO: Hon. Joe T. Patterson Attorney General of the State of Mississippi and Hon. Dugas Shane Asst. Attorney General of the State of Mississippi Attorneys for Defendants PLEASE TAKE NOTICE that the undersigned attorneys for plain tiffs will bring on the foregoing motion for preliminary injunction be fore the Honorable Sidney C. Mize, United States District Judge, 61 Southern District of Mississippi, at Jackson, Mississippi, at 2:00 O'Clock P. M ., on the 11th day of July, 1961, or as soon thereafter as counsel can be heard. / s / Constance Baker Motley Constance Baker Motley Derrick A. Bell, Jr. Thurgood Marshall 10 Columbus Circle New York 19, N. Y. R. Jess Brown 1105 1/2 Washington Street Vicksburg, Mississippi Attorneys for Plaintiff (This instrument carries the proper certificate of service which is not copied here.) >j< :(e s jc js >!< ON MOTIONS FOR ADDITIONAL TIME (Title omitted - Filed July 14, 1961) APPEARANCES: Honorable R. Jess Brown, Attorney, Vicksburg, Mississippi, For Plaintiff; Honorable Dugas Shands, Assistant to Attorney - General, State of Mississippi, Jackson, Mississippi, For Defendants. BE IT REMEMBERED that on, to-wit, Tuesday, the 27th day of June, 1961, at Jackson, Mississippi, in the Jackson Division, Motions for Additional Time were presented by the Defendants in the above-entitled cause and heard before the Honorable Sidney C. Mize, United States District Judge for the Southern District of Mississippi, and the follow- 62 mg proceedings were had and entered of record. BY THE COURT: Let the record show that the Honorable Jesse Brown appears in behalf of the plaintiff. It is on a motion of the defendants for an extension of time within which to plead, and also on motion of the defendant Robert B. Ellis to vacate the plaintiff's notice of taking his deposition and to suspend or stay the taking of such deposition from June 23th until some later date. BY MR. SHANDS; I believe that is June 30th. BY THE COURT: Yes. Very well, Mr. Shands, you may briefly state - - I have read the motion. BY MR. SHANDS: I am glad the court has read the motion because, quite frankly, I don’t feel up to reading the motion in its entirety. Briefly, the motion addressed to the deposition is based upon the fact that I am not physically able to, first, attend the taking of the deposi tion, proposed taking of the deposition, of Mr. Ellis on June 30,1961. Also, I assert in the motion h ere --or this defendant, Mr. Ellis, does-- that I am not physically able to prepare for presentation and present the objection that we have made under Rule 30-A and B to the taking of the deposition on a basic standpoint. BY THE COURT: I believe all those facts are set out in your affidavit. BY MR. SHANDS: They are set out, together with a doctor’s certifi cate to the effect that he has advised me that I am not physically able to do those things, and I have asserted in the affidavit that I personally 63 believe that I am not physically able to do it. I tender myself; I be lieve counsel for plaintiff, Jess Brown, has been given two copies of each of these motions which I believe he has read, and that X offer in the motion with reference to Mr. Ellis* deposition, I tender myself as a witness to answer any questions that he cares to ask me. As to the motion for extension of time, the answer under the Federal Rules and the prior direction of the Court of all the defendants is due to be filed on or before tomorrow, which is the 23th. I regret very much the necessity of having to make these motions. The reason I make the mo tion for the extension of time is because there I say I am not physically able and have not been physically able to do the work necessary to properly prepare the answer and the motion of the defendants. I regret I havenot been able to do so. The affidavit shows that I have been in the hospital; it shows what my problems are --elevation of blood pressure and other things. My doctor says that I am not physically able to pre pare the answer. I believe that is so. X know from my own feeling that I am not. I also on that motion tender myself as a witness to answer any questions. I was in the hospital, I believe, from the 16th of June - - some time after noon of the 16th. I was released on the afternoon of the 21st. I recognize, of course, the due date of the answer as being the 23th. I had previously done and since then have done everything in my power to have the answer ready, rather than to be forced to ask for this delay. I did not receive the notice as to the deposition until, I be lieve, --whatever date Friday was --th e 23rd. It was signed by 64 Gonstance Motley and signed in New York on the 21st and sent to me air mail, special delivery. I received it Friday. We do not — - This is no effort to delay, as such. It is produced and the motion made sole* ly because of the fact of my health. I felt that the plaintiff in this case and his counsel and also the parties would prefer that I bring my per sonal situation to their attention, rather than talcing a chance on jeop ardizing my ability or my usefulness in the future, I will say to the Court that I will do everything in my power to file, prepare and file this answer. I think we ask for fifteen days. That is actually. In my judgment, a bit too short a time. I realize the importance of this case to the plaintiff, to the Court, and to the defendants; for that reason, I have, may I say, pushed myself a bit to cut the time to fifteen days. That would permit the filing of the answer on July 13, 1961. I have made the affidavit I offer to the Court and to counsel for the plaintiff. If they have any doubt about the correctness of that affidavit and if they care to ask me to furnish a certificate of my doctor, I will do so. I will do that if the Court wishes. BY THE COURT: Counsel, do you want to say something? BY MR. SHANDS: — And I am here and I offer myself as a witness to be examined by counsel for plaintiff on the subject matter of this mo tion. BY MR. BROWN: May it please the Court, I would like to ask a couple of questions. Mostly, the testimony I'm not going into. I notice, ac cording to the record here and particularly the motion of the defendants 65 for extension within which to plead, that it was respectfully submitted by all defendants and also shows "b y ," as I read here, "the Honorable Joe T. Patterson, Attorney-General; and Peter M. Stockett, J r ., Special Assistant to the Attorney-General; Edgar L. Cates; and Dugas Shands, Assistant-Attorney-Generals; by Dugas Shands, an Assistant Attorney-General. " Mr. Shands, that is indicative of the fact that there are more attorneys representing the defendants other than your self? BY MR. SHANDS: Oh, yes, yes. There are three others. It so hap pens, as I allege in the affidavit which you have examined, that this case has been made my primary responsibility, and I - - while I say this with modesty; I don't like to use the term, but for lack of a better word, I would say I have been the leading counsel, as you know and as Constance Motley knows and as the record reflects, since the begin ning of this case. In my humble judgment, it would be totally imposs ible for either Mr. Patterson, the Attorney-General, or Mr. Cates or Mr. Stockett to become as familiar with this case as am I. I know under the circumstances reflected by this record that counsel for the plaintiff would not expect that. That is my candid view. BY MR. BROWN: I also would like to ask, do you have any other as sistants, other than the ones that are listed here? Are there any other assistants to the Attorney-General? BY MR. SHANDS: Who are working on this? BY MR. BROWN: Not necessarily who are working on this, but do you 66 have any other assistants that could possibly join with the others? BY MR. SHARDS; Not that I know of. BY MR. BROWN; How many do you have on the staff in the Attorney- General's office who are lawyers? BY MR. SHANDS; Five others. BY MR. BROWN; Five other than the ones who appear in this case ? BY MR. SHANDS; That is true. May I make this further description of their duties? None of those men have had occasion to be acquainted with the field of the lav/ that is involved in this lawsuit. None of them at any time have had any touch in any shape, form or fashion with this lawsuit. May I also add that the Attorney-General of Mississippi has many, many duties that he must perform. The reason he has assis tants is so as to delegate the responsibility and the duties in order to not himself have to be familiar with every detail of every state depart ment and every lawsuit and every facet of state government, which of course would be totally impossible. He has not had the touch with this case that have I or either Mr. Stockett or Mr. Cates. BY MR. BROWN; That is all. BY MR. SHANDS: May I ask, just for the record: Was your question ing of me a suggestion of your associate counsel or was that your idea? BY MR. BROWN: Well— BY MR. SHANDS: - - I withdraw the question. BY THE COURT: Very well, Jess, what do you say in opposition to the motion? 67 BY MR. BROWN: I think I can possibly clear up the question you just made. Actually, I personally did not know how many assistant attorney- generals were in the office other than Mr. Patterson — I mean, other than Mr. Shands. The number, I knew there were others, but I didn't know the exact number, and I think I can also further bring out by say ing this: From the testimony on the questions to Mr. Shands, there are a total of four other assistant attorney-generals other than the ones - - I mean, there are four that appear here; that's the Honorable Joe T. Patterson, Honorable Peter M. Stockett, J r ., and Honorable Ed ward L. Cates and Honorable Dugas Shands. That is four, and I be lieve you testified there were five others, approximately. BY MR. SHANDS: I think that's right. BY MR. BROWN: Which would be about nine. And the plaintiff takes the position that with as many as at least nine in all, including the Attorney-General and the assistant attorney-generals, and in view of the fact that there are four who are assisting in this case, that even though Mr. Shands is ill at the time, this case could very well be carr ied on without him, because at this particular time, so far as the dep osition and the matter of this answer which is due on the 28th - - could be taken care of by others who are certainly able to do so. Now, the next thing is that this is not a case that involves diffi cult questions. As a matter of fact, cases have already been settled on this particular thing all the way back starting with the Gaines case on up until recently. So it is not too difficult to get to the questions so 68 far as the court has decided. Now, also we have filed a motion for a hearing for the production of records, asking for records, which that motion is now pending. It is filed and the hearing is pending on that. We say that we would like to bring that motion up today, if possible, so that we can get a date set on that, since we are here today and we meet here today, to expedite the time. Now, of course, this case was set for trial, as already brought out, on the 28th which is tom orrow------I mean the answer was due on the 28th. It is set for the 10th of July. The answer is due on the 28th. Now, according to the Rules of Civil Procedure, of course, the answer was due in 20 days. Now, even the answer coming in on the 28th as the Court set would be even beyond the 20 days, because the case was filed on the 31st day of May; and even if the answer should come in tomor row, it would be the 28th day of June, which would not only include 20 days, but also beyond that. Also, it is my understanding of the Rules that if you must make such motion as has been made here by Mr. Shands in behalf of the de fendants here, that such a motion should be made — must be made with out delay within such time. In other words, it should be made within the 20 days, rather than to go beyond the 20 days and then come in and move the Court for delay of time. If they had come in before the twen ty days had expired, then of course, we take the position that the Court could have entertained such a motion; with you coming in after the twenty days, we feel that the Court could not do so. 69 Now, the next thing is this: that the attorneys for plaintiff need time in order to get their case properly prepared. Now, if this answer was filed on the 28th as the Court has permitted, it would give us a chance to prepare our case, because we can not prepare a case ade quately until we receive the answer; and as long as there is a delay in getting the answer, it hampers us and delays us unnecessarily. And, of course, the fifteen days that are being sought here by the defendants' attorney, Mr. Shands, would exceed or be past even the date set for trial — that is, the hearing set on the 10th of July. Fifteen days would make it beyond the 10th of July, so therefore there would have to be another setting on it. Now, of course, Your Honor has set this injunction hearing for the 10th of July, and it was our understanding that after the 10th — possibly on the 11th - - w e would get through with it in a day and on the 11th we would go into this case we are discussing here, the Meredith case. Therefore, we should insist on a hearing on the 11th or at any time right after that, after we have the hearing on the injunction case that is set for the 10th. Now, of course, we first started out as a pre liminary hearing, which was held in Biloxi - - I ’ve forgotten the exact date. Anyway, that preliminary hearing was discontinued. Now, if there is a delay, it would leave the plaintiff in no position other than to renew a motion for preliminary hearing, renew our motion for prelim inary hearing that we had originally sought before this time. Now, as to the deposition, twenty days has passed. As you 70 remember, we filed a motion and sought to take the deposition of the registrar, Mr. Byron Ellis, Registrar of the University of Mississippi, at which time there was vigorous objection by counsel for the defen dants to us doing so, because he said the Rules did not permit us to take it until the expiration of the twenty days, and which the Court sus tained the position of the defendant. Now, we also need this deposition of Mr. Byron Ellis so that we can properly prepare this case, in like manner as we need the answer coming forth from the defendants’ attor neys. There is no question about it, as far as the deposition is con cerned, we are assured that they have nothing to hide and that they cer tainly would not unnecessarily delay us in doing so, and that there would be possibly other lawyers here — particularly on this record, on this particular set of pleadings * - who could come in and carry on this deposition, because it is not too difficult to carry on; certainly not as difficult as a hearing would be. Now, therefore, to do so would place us in such a position as where if the registrar could not appear on the date that we have given notice, it would leave us in posi tion to move the Court for judgment by default for not appearing. That is the position we take, and we feel that it would certainly have a de laying action. There is no question about it and I am certainly convin ced of Mr. Shands’ ill health, because the affidavit shows, and I don't want the record to show that I any way dispute or disagree with that. I certainly take his word for that, together with the affidavit which I cer tainly do not dispute. If we could only take — that is, the Court would 71 take into consideration here that there are other attorneys who are able and ample to carry on the deposition and also to file an answer within the time the Court has already specified, without any further delay. That is all. BY MR. SHANDS: I have one observation to make, if it's still per missible for me to remain seated. BY THE COURT: Yes, sir. BY MR. SHANDS: As to the twenty days, I was not filing this motion here for extension within twenty days. Counsel for the plaintiff has badly overlooked these circumstances. This suit was filed on May 31sii process was not served upon all the defendants, and the last defendant who was served with summons was Mr. Fair, the President of the Board of Trustees, one of the defendants. The Court will recall that on June 12th at Biloxi during the course of the proceedings upon plain tiff's motion for temporary injunction, I there made the specific in quiry as to when the answer would be due in view of the fact that the last defendant was served on June 8th, 1961. Counsel for plaintiff Jess Brown was there; Constance Motley was there. At no time was there any utterance or any comment from them that that was in the ex tension of time; and I don't believe counsel for plaintiff here would as sert that this motion is not filed within the period of time set by the Court on June 12, 1961. Would you? BY MR. BROWN: The position we were taking was that from the time it was filed, you had twenty days within which to file an answer. Of 72 course, the Gourt set the 28th, so we don’t argue about that because the Court set that. BY THE COURT: I ruled there the answer would be due from the date the last defendant was served, so I didn’t regard that as a motion for an extension of time, but it was a request for construction of the rule. So at that time I ruled the answer would be due on the 28th. BY MR. SHAND3: May I have this further statement, Your Honor: As to Mr. Gates and Mr. Stockett, I might say for the advice of the Court, counsel and the record, both Cates and Stockett are tied up in a con ference this afternoon on another case in which the counsel for the plaintiff in the Meredith case are attorneys for the plaintiff, and rather than ask either of those gentlemen to come over here and present this and pull them away from other work in the office, I left it to myself to come over here and present this rather than pull them off the other work. And I happen to know that the Attorney-General himself is bus ily engaged in some related and other duties of 'die office, and for that reason, seeking to permit our office of the Attorney-General to engage in as many things, to prevent dalay , to give expeditious attention, I denied myself the opportunity of having Mr. Cates come here this after noon and present this motion instead of me doing it. Further, as to their motion for production of documents, which they gave notice — I'm sorry, I don’t recall the date, but they have two motions pending here, and we are not ready on that and would oppose any proceeding into that at this time for the reasons that are assigned in both of these 73 motions. BY THE COURT: Very well, Gentlemen. I have heard you, and I would not take the responsibility of personally impairing the health of a lawyer of the standing of Mr. Shands or any other lawyer and put my judgment against that of his doctor and force him into immediate hear ing of these matters or an immediate answer of these matters. I am going to sustain the motion. I might say this: that the Court knows Mr. Cates and Mr. Stock ed equally well. They are bright young men but inexperienced and have not participated in the trial of this case other than in, apparent ly, research work. The Court takes judicial knowledge of the fact that Mr. Shands is the leading attorney in this case and is the only experi enced attorney in the case and only one, in my judgment, outside of Attorney-General Patterson himself, who is capable of handling a case of this importance, of this magnitude. The testimony shows here that General Patterson, who is the attorney-general, of course, has many other duties, as judicial knowledge of those laid down by statute I can take; and he has not actively participated in the trial of this case or any proceeding anywhere in this case. He has been present at times, at other times he has not been present. Mr. Cates has just rather re cently become connected with the Attorney-General's office. He ser ved as a law clerk with Judge Cameron up until some six or eight mon ths ago - - maybe a little longer; and Mr. Stockett has likewise, to the knowledge of the Court,, not been out of law school too long. So these 74 young men, while brilliant, have no trial experience and are not in my judgment, with due deference to them - - because they are fine young men, but they axe not sufficiently capable and trained to handle a case of this importance. This is an important case both for the plaintiff and for the defendants. Also I take judicial knowledge of the heavy load that is being thrown upon the Attorney-General’s office at this particu lar time in cases of similar type here, and to force Mr. Shands into these hearings on the dates presently set would certainly impair his health. I am looking at him now, and he ought to be in the bed. A lay man can observe that. The Court judicially knows from his appearance in this court he has been heavily worked for the last year, not only in these civil rights cases he has pending, but also one pending in Biloxi for the integration of the beach down there, which is a very hotly con tested case and a very far-reaching case and a very complicated ques tion of law involved in that case. There is a question of private owner ship hotly contested as to whether the beach is a public beach or not. So there are many things that I know of personally that have been in this court which compel me to grant some relief to a sick man. So I am go ing to do that, and I sustain the motion for fifteen days additional time in which to answer, and I will sustain the motion to vacate the notice to take the deposition on the 30th, and I will not set the motion for produc tion of documents at this moment, but very probably I will, for conven ience of counsel distant from here, try to set the motion for production of documents and taking of the deposition at the same time. 75 So therewith, coming down to the question of the trial of this case upon a motion for a preliminary injunction, which is set for July 10th, at the hearing heretofore had in that case, this Court set It for July 10th. Subsequent to that another case was filed which requir ed the hearing by a three-judge court. Judge Tuttle, the chief judge of the Court of Appeals, set that hearing for July 10th, and I have no in formation as to how long It will take, but that case is set and it was my thought that probably I might set this case over until the 11th or 12th of July, and if we finish with the three-judge court hearing, then we could take this case up, provided Mr. Shands has recovered from his present condition, and go on with the trial of the case. It is a very Important case, and I am going to give it a reasonably early hearing, very prob ably on the 11th. A s a matter of fact, I will let it remain set for the 11th, and if anything should develop whereby it couldn't be heard on that date, then I will re-set it for some date a little later. If the dep osition is not taken before that time and if the motion for production of documents cannot be heard before that time and if counsel for plaintiff should desire a resetting of the case for some two or three weeks in order to obtain these depositions and production of documents, I would certainly grant that. But I do want to try the case as early as it rea sonably can be done under all the existing circumstances and with the many things that are appearing before this court. There are other in junctions that pre-date the filing of this case which are pending in this court and could not be heard because the Court could not reach them. 76 I am in the middle of the trial of one case which involves an injunction and involves some two or three hundred thousand dollars. I ’ve been on it for eight weeks already. That case was recessed at the last hear ing some time in May until July 17th, so I don’ t know - — and it will take some two or three weeks to finish it when I get back into it. So that is the situation of the docket in this court. Now, an additional judge has already been appointed and is to have a hearing for confirma tion before the judicial committee in Washington today. So far as I know, there will be no objection to his confirmation, and I assume he will be confirmed within a short time. I saw him yesterday, and be cause I am very anxious to get his assistance so I can go on in an or derly manner with all these things arising, I asked him how long it would take him to wind up his office business before he could be in ducted into the judiciary. He advised me it appeared it would probably take him until the latter part of August or the first of September, but perhaps, in order to help me out, he might be able to take the other by the 15th of August. So, Gentlemen, that is the situation of the docket in this district. It is no fault of mine; the bill for an additional judge in this district has been recommended for six years by the judicial committee of the United States. It went through the four year period of the Eisenhower administration and was not acted upon. The Omnibus bill was not, but it was acted on this spring, and the judge of this district has now been appointed; and I hope some time in the near future I can, with his 77 assistance, catch up on this docket* But X am going to give priority to this case just as far as it possibly can be done. I will sign these orders in accord with my ruling and I will not fix a date at this mo ment for the taking of the deposition or the motion for production of documents, but some time within the next week or ten days or maybe earlier if I can get the proper information, I will fix a date and will advise everyone when 1 do fix a date for the taking of the deposition. BY MR. SHANDS: May the record show that I asked Jess if counsel for the plaintiff wanted a medical certificate from my doctor, and Jess said he did not. BY THE COURT: Very well. BY MR. BROWN: That is right. BY MR. SHANDS: I would be glad to furnish it, but since they don't request it - - BY MR. BROWN: I wouldn't question his affidavit. BY THE GOURT: Very well, Gentlemen. 78 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI, JACKSON DIVISION JAMES A. MEREDITH, PLAINTIFF VS. CHARLES DICKSON FAIR, ET AL, DEFENDANTS COURT REPORTER'S CERTIFICATE I, D. B. JORDAN, Official Court Reporter for the Southern District of Mississippi, do hereby certify that the foregoing pages constitute a true and complete transcript of the proceedings had upon the hearing of Motions of the Defendants for Additional Time in the above-entitled cause before the Honorable Sidney C. Mize, United States District Judge, Southern District of Mississippi, at Jackson, Mississippi on the 27th day of June, 1961. WITNESS MY SIGNATURE, this the 10th day of July, 1961. / s / D. B. Jordan D. B. JORDAN 79 ON DATES FOR FILING OF ANSWER AND ARGUMENTS OF MOTIONS (Title omitted - Filed July 15, 1961) BE IT REMEMBERED that on, to-wit-, Monday, July 10, 1961, certain matters in connection with the above-entitled cause were pre sented for clarification and ruling by the Honorable Sidney G. Mize, United States District Judge for the Southern District of Mississippi, at Jackson, Mississippi, and the following proceedings were had and entered of record. BY MRS. MOTLEY: We filed a notice and motion for preliminary injunction and set it down for hearing tomorrow at two o'clock. We had assumed that this other hearing would be completed to day, or certainly tomorrow morning, and that we would bring on our motion for preliminary injunction. Now, the second session of the summer school begins on July 17th, and as Your Honor knows, we brought a motion for preliminary injunction to try to get Mr. Meredith in for the first summer session, and now the second summer session is coming up and we wanted to know whether Your Honor is going to hear that motion tomorrow at two o'clock in view of the postponement. BY THE COURT: Yes, I imagined that would arise. What do you say, Mr. Gates? Will you be ready on that or depend on Mr.Shands? BY MR. CATES: We would depend on Mr. Shands. We were prepar ing personally for these vote suits we have right now, and we 80 are not prepared. BY THE COURT: You would make the same showing in this case as was made in the case this morning? BY MR. CATES: Yes, sir. We certainly would. BY MRS. MOTLEY: Your Honor has already postponed that because Mr. Shands is ill, and required them to answer by the 13th. It seems to me if he is required to answer by the 13th, they should be prepared to go ahead on a motion for preliminary injunction tomorrow. If it had not already been postponed on grounds that Mr. Shands is ill, that would be one thing; but he can be ill for the next year, and certainly a man's constitutional rights can't be suspended because an assistant attorney-general is stated to be ill. A man must have some rights, and It's an immediate situation because he has already lost the opportunity to go to the February term, the first summer term; and now, because some body is ill, his constitutional rights can’t even be heard. We don't think that Is justified at all, and that this state has enough money to hire a special attorney if necessary to hear these cas es, and the man cannot be asked to forego his constitutional rights until somebody recovers from an illness. We are very sorry Mr. Shands is ill, and we are not questioning that at all, but we do think a case involving constitutional rights cannot be suspended because someone is ill. BY MR. GATES: May I make this first clarification? Does counsel 01 have reference to the motion for preliminary injunction that was filed on June 29, 1961 ? BY MRS. MOTLEY: Yes, that is what we are talking about. BY MR. CATES: I think that before we can get to that — I don’t think that is a proper motion to go forward with at this particular time for this reason: We are now right in the midst of the other mo tion; this is a brand new motion — and I don’t know what to call it, other than that — that the plaintiff is requesting or ask ing us to go forward with on the basis of the supposed discontin uance, as it states in the second paragraph, of the hearing. We assert that there has been no discontinuance, but it sets out very clearly in the record of this court on Page 132 on the previous hearing that the Court merely recessed. We already have one hearing which we are into now which Mr. Shands is properly directing. I don’t see how we can now come in with another pre liminary injunction. So I think that we have actually here a question of a hearing of two, and I don't think that we can have that when in fact this prior hearing has merely been recessed, not discontinued for the hearing of a new motion. So I think, candidly, that what faces the Court is a question here to deter mine whether or not this second motion filed on the 29th of June is properly filed when in fact it is now in recess from the prior preliminary hearing. BY MRS. MOTLEY: Of course, the motion is not in recess. Your 82 Honor set the case for trial for July 10th so that the motion was in effect denied. We requested a preliminary injunction and we didn't get it. That means the motion is denied. The Court set it for trial on July 10th. It was then postponed on account of the hearing of this case today and also on account of their request for time in which to answer with reference to the trial. And we therefore had the right to bring on another motion for prelimi nary injunction with respect to the second session of the summer term. I don't think there is anything improper about having fil ed that motion, because the first motion is denied. We didn't get any relief. And the Court set that case for trial. BY THE COURT: Now, no formal ruling was ever made on that. BY MRS, MOTLEY: That is true, but the motion was denied. BY THE COURT: It was not granted; in other words, was held in abeyance, as I understood it and thought it to be. BY MRS. MOTLEY: Pardon me ? BY THE COURT: I thought it simply was held m abeyance. While I didn't grant it, I didn't deny it, because we had not finished all the elements, as I recall. BY MRS. MOTLEY: I think that is a denial. We asked for an injunc tion. We didn't get it. And in my view, of course, that is a denial. We didn't press that. The Court set it for trial. We could have appealed from the denial of the motion for prelimi nary injunction, but since the case was set for trial there is no 83 point in appealing. Now there is no trial date, and another ses sion is coming up and we have not had any relief; so we filed another motion for a preliminary injunction* We have to press our case. We can’t sit bach and say, "Well, any time f ou gef ready to hear it. " If a man's bringing a constitutional case he has a duty to press It, and that is what we are doing. And the man hasn't had any determination of his rights, and this case has been filed since May 31st. The state has had his application since February 1st. Now, on that basis we think they are not entitled to any further continuance. If he had just filed this application and they hadn't had time to investigate, that would be one thing, but from February to July, to say that they are not ready in a simple case involving one applicant Is just too much to believe. And Mr, Gates has been at every one of these hear ings; the other man over there, whose name I don't recall, has been at every one of them. They took the plaintiff's deposition which the Federal Rules provide for so they can find out what the plaintiff's case is all about, what facts they are going to have to meet, and that deposition has been taken since June 8th, so they cannot come in now in good faith and say, "We are not prepare^ " because it is not a difficult and unusual case. There have been cases like this in every state in the South. They are reported; they have it available, A first year law student can try such a 84 case, and I don't believe that these two lawyers are incapable of defending a case involving the admission of a Negro to a law school, because the law books are filled with such cases. BY THE COURT: Well, in view of what transpired this morning in the case pending before the three-judge court, an application for a stay until August 7th was granted because of the absence of Mr. Shands due to his illness, which did not materialize until yester day according to the record in that case, and in which counsel for plaintiff in this case was of counsel for plaintiffs in the other case, and I will permit Mr. Cates to file the same affidavit in this case or regarding the one that was filed in the other case as having been filed in this case, and in those circumstances and for the reasons indicated in that case, I think it vrould be wrong to force the defendant to go to trial. As was stated in that case this morning and as I imagine counsel for plaintiff knows, Mr. Shands has been the leading counsel in all of these cases involving civil rights; he is the first assistant to the attorney-general of the State of Mississippi, and this particular line of litigation has been assigned to him. He has participated in all of them, taking the leading part in all of them, and has prepared pleadings in all those cases; and under the circum stances, I don't think a short delay would be erroneous or cause irreparable injury, because this is an important case, just like the one where the three-judge court is sitting in the case. And 85 in this particular case it has been brought to the attention of the Court in some of the arguments on some of the other motions that the defendants deny that the race issue has prevented his being enrolled as a student, but they have asserted other grounds which they intend to press. So it will involve a real trial, and, just as I stated this morning in the other case, it is an import ant case and many questions are involved in it. Ordinarily the law is that a litigant is entitled to an attorney of his own choice, and in this particular case it was Mr. Shands as the leading counsel. And suddenly it develops that he cannot be present, upon advice of the doctor; so I think the ground for postponement is a reasonable request and I will grant that request. 1 might say to the Attorney-General that if Mr. Shands does not show improvement so that he can be present on the date this case is set for hearing - - and we will discuss that in a few minutes — that he would have to go to trial anyhow, and I will give him add itional outside counsel or assign some member of his office to conduct the defense. The plaintiff is certainly entitled to a trial, and the defense of course is entitled to defend the lawsuit and is entitled to a reasonable delay from circumstances that occurred only yesterday. So I am going to grant a postponement of it from tomorrow and it will not be called up tomorrow; but in response to counsel for plaintiff's statement that they thought the motion for preliminary injunction was out of order in being filed at this 86 time, I will certainly hold that you have a right to file that mo tion for preliminary injunction, and the entire matter will come on for hearing upon the motion for preliminary injunction on the date to be set. And the Attorney-General can make his arrange ments to have another attorney represent the defendant if Mr. Shands should not be able to be present. From the affidavit that has been filed and Mr. Shands' affidavit, I anticipate - - - and also from my personal observation of Mr. Shands in the courtroom a short time ago - - - that the main tiling he needs is a few weeks of rest. The record shows by the affidavit he is subject to high blood pressure and has been under a great deal of tension from all these cases he has that have been filed. And there have been a number of cases involving civil rights, (voting and integration of the beach on the Coast and this particular case and some three or four other voting right cases in various counties of the state.) All of those are in this particular court here with the exception of one, which is in the Northern District, or was; I don't know whether the judge disposed of it or not. But I know there are some in this district and some just filed a few days ago - - three new ones, I was advised by the Clerk's office, have been filed within the past few days, and I have set them for hear ing on August 7th. Now, as I announced this mornin g in the three- judge court, I am going to give that case pending before the three judges priority, and I will be required to set the voting 87 rules case and this case following the one with the three judges, because it is so difficult for three judges to get together on a date satisfactory to all. So on this particular case, I think it should come ahead of those voting rights cases, and I will set it at some satisfactory date during the week of August 7th, after going off the record for a moment to discuss it with counsel, un less you would rather have the discussion of a date on the record. As I stated to you, Judge Cox, who has been appointed and con firmed by the Senate to be a district judge in this district, is expected any time, though his commission has not yet come in, and it is his intention to take the oath of office as soon as his commission comes. So I will have some relief from the other type of litigation. Since counsel for all parties are the same in these various civil rights cases, I think it would be necessary that I proceed with them myself; otherwise, I would assign those voting cases to Judge Cox to be heard by him. But under the present circumstances that exist now, it occurs to me that the voting rights cases that were filed a few days ago will go over possibly until the 10th of August, or approximately the 14th of August, and that would give the week of August 7th for hearing the three-judge case and for hearing this case. Now, Counsel, how long do you think it would take to hear the motion for preliminary injunction in the Meredith case ? BY MRS. MOTLEY: I think it would take one day. 88 BY THE COURT; From your knowledge of it, Mr. Cates, do you think it could be heard in one day? BY MR. CATES; X think possibly it could. BY THE COURT; I think possibly the three-judge case will be dispos ed of on the 7th of August, one day, so what about setting this one for the 8th of August? BY MRS. MOTLEY: I think the three-judge court will probably take more than one day. We have subpoenaed at least a dozen wit nesses, and I would say now that it would take two days, so I think it would be better to set this case for the 10th, instead of for the 8th. BY THE COURT; Very well. That will be Thursday. Very well. Set it for Thursday the 10th at nine o'clock, and if Mr. Shands is not able to participate at that time, I am going to require the case to go ahead for trial because that will give you ample time to assign some other lawyer if present counsel would feel he would need any assistance. Of course, with reference to these young lawyers, they are both bright young men, to my knowledge, but not experienced in the trial of cases. To my knowledge, Mr. Shands is experienced in trial, and there is a lot of difference in knowing how to try a case and in knowing what the law of a case is. So, with deference to these two young gentlemen, I am going to pass it until the 10th of August, but if Mr. Shands is not able to participate, you be prepared to go forward with the 89 trial of it. BY MRS. MOTLEY: There are two other matters with respect to this case. We have filed a motion to inspect the records, which has not been heard, and we served a notice of taking the deposi tion of the registrar. Now, we would like to get an order now permitting us to inspect the records at the University of M iss issippi, and we filed that motion - - I don't have the date, but it’ s been quite some time. We also, as you know, attempted to take the registrar's deposition shortly after the suit was filed, and then we filed another notice and they postponed that. Now, we would like to take the registrar's deposition on July 24th and we would like to inspect the records beginning July 24th and continuing until we complete the inspection. And we would like the Court to enter an order to that effect now permitting us to inspect the records and to take the deposition of the registrar so we can be fully prepared for the hearing on August 10th. BY MR. CATES: We of course would like to object. I didn't know — We are not prepared to argue those particular matters. We do not think offhand that the plaintiff has the right permissively or otherwise to inspect the documents. I am not prepared for that, to argue for a protective motion for Mr. Ellis under Rule 30, but I honestly believe we should not have this deposition taken as the leading counsel because, after all, it is the same thing as a trial for him to properly present his objections at that time. 90 If the Court would care perhaps to set this thing down for argu ment on whether or not we should allow, first of all, the discov ery of documents and the deposition at a later date, we would prefer that, rather than the Court making an order allowing them so do do at this particular time, because it is my first blush that they are not entitled so to such discovery. BY MRS. MOTLEY: Obviously we are entitled to inspect the records. How in the world could we try a case if we can’t look at the records in the case? The rule provides for it, and he hasn't given one reason why we should not inspect the records. This case has been pending since May 31st and the rules provide that we inspect the records, and there is no reason given here why we should not inspect the records. If he had a reason for it, he ought to come out with it. How could he possibly object to our inspecting records involved in the lawsuit? BY THE COURT: Counsel for the defendant is just simply raising the objection. He is not preparing to argue it. Of course, oppos ing side is entitled to object and to present his ground for the record and for the Court to determine whether or not you are en titled to inspect the records at this particular moment. So I think that I will set those motions for the same date as we set the other one. At that time Mr. Shands will either be here or they will be heard at that time. That is on the 10th of August. BY MR, CATES: While we are clarifying these issues, I just looked 91 at my calendar here, and I note that the answer of the defendant is due on the 13th, which is Thursday of this week. It is the defendant’ s desire to have that postponed until such time as Mr. Shands might properly prepare an an answer to that. BY THE COURT: Gentlemen: I will allow you until July 19th in which to prepare that. If Mr. Shands is able to confer with you and give you his advice, he can; otherwise you or some of your assistants will have to draw an answer and file it by July 19th. BY MR. CATES: Yes, sir. That is Wednesday, July 19th. BY MRS. MOTLEY: I ’ve misunderstood. I thought August 10th was the date of the trial. Because the motion won’t do us any good. We were trying to get him in the second semester, the summer session. That will be gone. So it seems to us the trial ought to be on August 10th and the whole matter disposed of, because the motion is moot then. BY THE COURT: You can go as far as you can on the 10th of August and if you want a short postponement after 1 rule on those, I will grant you that and go right ahead. BY MRS. MOTLEY: Sorry, I didn’t follow you. BY THE COURT: I say you can go ahead as far on August 10th as you can get ready for trial, and at the same time also I will rule upon these motions; and if I should sustain the motion for an inspec tion of the documents, I will give you such reasonable time as you need and then resume the trial of the motion for the 92 preliminary injunction. BY MRS. MOTLEY: That is what I am saying, Your Honor. We moved for a preliminary injunction with respect to the second semester of the summer term, which begins July 17th. It will not do us any good to press that motion on August 10th because the summer school will be half over and done with by then. It was my understanding the 10th was the date of trial, which was supposed to be today. If the trial was supposed to be today, I don't see any reason why the trial could not be on August 10th. That was why we were pressing now the right to inspect the r e cords and take the deposition of the registrar. The motion, with the date being set for August 10th, would not do us any good, to press that motion. It would be too late. BY THE COURT: The only reason I am postponing is because of the illness of Mr. Shands. BY MRS. MOTLEY: We will withdraw that motion for a preliminary injunction because it won’t do us any good. The summer term will be over August 10th, and August 10th we are prepared to go ahead with the trial - - which we were prepared to go ahead with today. Your Honor had set the trial for today. In view of the fact that you have set an early trial date — or I thought it was the trial date, August 10th - - w e were not going to press a mo tion for July 17th which would have passed. That wouldn't make sense, and we don’t want a hearing on the 10th for a motion when 93 that wouldn’t do us any good. BY THE COURT: Well, you can file a later motion if you desire at some future date, because this case is of such importance that while I regret the illness of Mr. Shands and regret that the mat ter had to be postponed, I do feel and I know that he is the lead ing lawyer in the Attorney-General's office and the only exper ienced trial lawyer in that office of this department; and it is because of that unexpected illness which has arisen that the postponement is caused. BY MRS. MOTLEY: We are not questioning that. AH we are asking now is that Your Honor set the trial of the case for August 10th. BY THE COURT: All right. It is set for trial on August 10th. Now, if you want to press your motion for inspection of the records and so forth on August 10th, I 'll set that for August 10th. BY MRS. MOTLEY: No, we would like to have that heard before the trial. If the trial is August 10th, we would like to have the mo tion to inspect the records disposed of before then, and we would like to take the deposition of the registrar before then; and we will file a new notice of taking his deposition on July 25th and, as I understand the rules, before that time they are required to file their objections to that; and we wiU also file a motion to inspect the records on July 24th, and before that time, under the rules, if they have any objections they have to make them before that date. 94 BY THE COURT: When that is filed, if there are any objections then I will take them up. And for your information now, I will be on the Coast during the week of July 24th except on July 26th and 27th. On that date I am to be in Meridian to hear some matters on a bankruptcy reorganization proceeding which I can't postpone because notice to creditors has gone out. Well, you might con tact the Clerk to find out where I will be, because I am in the middle of another trial at this moment which w e'll pick up again on the 17th of July and which will run for three weeks, but I will try to figure out a day, if Mr. Shands is able to appear, to hear any matters that may arise in this case. So you can serve the notices, and whatever arises I will pass upon when you call it to my attention. You might contact the Clerk’s office to find out where I will be. BY MRS. MOTLEY: I would like to add this: We have a motion to inspect the records, and I don’t think it is necessary to file a new motion. AH we are saying is that we want to amend it to permit us to inspect those - - since Your Honor is going to be busy on the 24th, we'H make that July 25th. And we take the deposition of the registrar on July 26th, and we’ll file a new no tice as to that, and if they have objections to that they have to put them in and set it for hearing on their objections. Otherwise I assume we can go ahead on the 26th. BY THE COURT: You may do that. 95 BY MRS. MOTLEY; There is one other matter. We have served the registrar twice - - once to take his deposition in Biloxi — and we, I think, tendered him $64.00 which has not been returned. Whatever the sum is - - I'm not insisting that amount is correct. We then served him to appear tomorrow and we again tendered some money, I don't know the exact amount. What we want to do is get an agreement that we wouldn't have to put out any more money to get the registrar down here for his deposition or for the hearing on August 10th. We have already given him money for two occasions, and of course he hasn't appeared. We would like to get that straight. BY MR. GATES; We are of course delighted to tender back any money for witnesses who have not appeared, and I think that can be worked out amicably between counsel. Candidly, it is my understanding that the prior witness fee as tendered to M r.Ellis has been given back. Is that c o r r e c t ? ------Yes, that is my understanding. But, candidly, Judge, we can work that out where they will not have to spend any more money than has been thus far spent for these people not being here because this mat ter has not been taken up. BY MRS. MOTLEY; Can we agree he will appear for this hearing on the 10th and at the time that his deposition is taken without the necessity of tendering any additional money? BY MR. CATES; Without the necessity of tendering any additional 96 money, yes. That part we can agree to. But now what happens in the meantime, I would not want to be in a position of agreeing that he will be there --Period. But he will be there without the purposes of your having to tender any additional money for tra vel fee. BY MRS. MOTLEY: We will get out an additional subpoena, but if he doesn't require the money, we don't have to go to the expense of getting the money up to the New York district as we have done on two occasions. BY THE COURT: Yes, that is understood and that is an agreement. Is there anything further? BY MRS. MOTLEY: I think that is all. BY THE COURT: Very well. 5}: >|< 5̂ $ 97 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI, JACKSON DIVISION JAMES H. MEREDITH, PLAINTIFF Vs. CHARLES DICKSON FAIR, ET AL, DEFENDANT COURT REPORTER' S CERTIFICATE I, D. B* JORDAN, Official Court Reporter for the United States District Court for the Southern District of Mississippi, do hereby certify that the foregoing pages constitute a true and correct transcript of the proceedings had on certain matters in connection with the above-entitled cause at Jackson, Mississippi before the Honorable S. C. Mize, United States District Judge, Southern District of Mississippi, on the 10th day of July, 1961. WITNESS MY SIGNATURE this the 13th day of July, 1961. / s / D. B. Jordan___________ D. B. JORDAN ;j< % J)s 98 NOTICE OF TAKING DEPOSITION ON ORAL EXAMINATION (Title omitted - Filed July 15, 1961) To the Honorable Dugas Shands, Assistant Attorney General of the State of Mississippi, one of the attorneys for the defendants In the above-named action: Please take notice that the plaintiff herein will take in the above- entitled action, to be used as authorized by the Federal Rules of Civil Procedure, the deposition of Robert B. Ellis, Registrar of the Univer sity of Mississippi, whose address is the University of Mississippi, Oxford, Mississippi, upon oral examination, before a properly quali fied reporter to be named by this Court, who is not of counsel or att orney for either of the parties to this action, nor a relative or employ ee of such counsel or attorney, nor financially interested in this cause, on the 26th day of July, 1961, at 10;Q0 o'clock in the forenoon of that day, at a place to be designated by the Court, at which time and place you are hereby notified to appear and take such part in said ex amination as you may be advised and as shall be fit and proper. Please take further notice that the above designated party, Robert B. Ellis, Registrar of the University of Mississippi, is hereby required to produce upon such examination the following records, pap ers and documents: 1. The application for admission to the University of Mississip pi of the plaintiff, James Howard Meredith, and all papers and writings attached thereto. 99 2. All correspondence between the Registrar and the plaintiff, James Howard Meredith. 3. All correspondence and memoranda between the Registrar and other officials, faculty and employees in regard to the plaintiff. 4. All transcripts and other written documents received by the Registrar from colleges previously attended and presently attended by plaintiff. / s / Derrick A. Bell Jr. Derrick A. Bell, Jr. 10 Columbus Circle New York, New York Attorney for Plaintiff July 12, 1961 >js > '{ >j« % REQUEST FOR AMENDMENT TO ORDER PERMITTING ENTRY UPON PROPERTY AND INSPECTION OF RECORDS (Title omitted - Filed July 15, 1961) In view of the facts set forth by plaintiff in the accompanying Notice of Motion, It Is requested that paragraph (2) of plaintiff's Order Permitting Entry Upon Property and Inspection of Records filed with plaintiff's Motion for Production on June 19, 1961, be amended to read: (2) that the said documents be produced at the University of 100 Mississippi, Oxford, Mississippi, or at such other place as is agreed upon by the parties, on July 31st, 1961, from 9:00 A. M. until 5:00 P. M. and on each day thereafter until the documents and records re quested are inspected; NOTICE OF MOTION The undersigned attorneys for plaintiff on June 19, 1961, filed with this Court a Motion for Production which motion was scheduled to be brought on for hearing on June 28, 1961. On June 22, 1961, the Hon. 8. C. Mize, United States District Judge for the Southern District of Mississippi, informed the parties that: "In checking my docket I find that I have a conflict for that date (June 23) and every day following during that week. I will not be able to hear that motion until July 6, at which time I will hear it in Biloxi at 9;00 A. M. " But prior to this date, and on or about June 27th, the defendants sought and obtained from the Court additional time to both file an ans wer and prepare objections to plaintiff's Motion for Production. This case is now set for trial on August 10, 1961, before which date plaintiff desires to carry out the discovery procedures as re quested heretofore. Therefore: Please take notice, that the undersigned will bring the above lotion on for hearing before this Court on the 25th day of July, 1961, 101 at 10:00 o 'clock A. M ., of that day, or as soon thereafter as counsel can be heard, at a place to be determined by this Court. / s / Derrick A Bell Jr.___________ Constance Baker Motley Derrick A. Bell, Jr. Thurgood Marshall 10 Columbus Circle New York 19, New York R. Jess Brown 1105 1 /2 Washington Street Vicksburg, Mississippi Attorneys for Plaintiff (This instrument carries proper certificate of service which is not copied here.) >j< >j< >|< > j: % ♦ ♦ SEPARATE ANSWER OF CHARLES DICKSON FAIR, E. R.JOBE, THE BOARD OF TRUSTEES OF STATE INSTITUTIONS OF HIGHER LEARNING OF THE STATE OF MISSISSIPPI, EDGAR RAY IZARD, LEON LOWREY, IRA LAMAR MORGAN, MALCOLM METTE ROBERTS, WILLIAM ORLANDO STONE, S. R . EVANS, VERNER SMITH HOLMES, JAMES NAPOLEON LIPSCOMB, TALLY D. RIDDELL, HARRY GORDON CARPENTER, ROBERT BRUCE SMITH H, THOMAS JEFFERSON TUBB, JAMES DAVIS WILLIAMS AND ARTHUR BEVERLY LEWIS___________________________________ Now come Charles Dickson Fair, President of the Board of Trustees of State Institutions of Higher Learning of the State of M iss issippi, Euclid Ray Jobe, Executive Secretary of The Board of Trus tees of State Institutions of Higher Learning of the State of Mississippi, The Board of Trustees of State Institutions of Higher Learning of the 102 State of Mississippi, Edgar Ray Izard, Leon Lowrey, Ira Lamar Morgan, Malcolm Mette Roberts, William Orlando Stone, S. R. Evans, Vemer Smith Holmes, James Napoleon Lipscomb, Tally D. Riddell, Harry Gordon Carpenter, Robsrt Bruce Smith, II said Thomas Jefferson Tubb, as Members of the Board of Trustees of State Institutions of Higher Learning, James Davis Williams, Chancellor of the University of Mississippi, and Arthur Beverly Lewis, Dean of the College of Lib eral Arts of the University of Mississippi, who are made defendants in this cause and who constitute all of the defendants except Robert Bryon Ellis, and for their separate answer to the complaint herein filed against them by plaintiff say: Each and every part and portion of this answer is made and should be taken and construed as if each defendant on whose behalf it is filed separately and solely assert same. FIRST DEFENSE THROUGH AND INCLUDING THE FIFTH DEFENSE AND MOTION FOR ABSTENTION_______________ 1. Defendants say that the Board of Trustees of Institutions of Higher Learning of the State of Mississippi, which the complaint at paragraph 6 names as a defendant and which plaintiff has asserted he is suing as such is not a legal entity suable as such under the law of the State of Mississippi, but said Board of Trustees files this answer be cause it has been named a party defendant by the plaintiff and the point that such Board is not a suable entity as such is not waived. 103 Though the caption or title of this cause does not name or desig nate the Board of Trustees of State Institutions of Higher Learning as a defendant said paragraph does. 2. All persons other than the Board of Trustees of Institutions of Higher Learning who are made defendants in this cause are sued, as apparent from the face of the complaint, in their respective official ca pacities. The defendants filing this answer are all of the defendants exclu sive of Robert Byron Ellis, Registrar of the University of Mississippi, who files his separate answer as a separate document in this cause. Each of the defendants filing this answer does hereby adopt in toto and in every respect as their answer the answer of Robert Byron Ellis just as if each and every allegation including, of course, all defenses therein set out, were alleged in this document, the answer of each of these defendants. Respectfully submitted, CHARLES DICKSON FAIR, President of the Board of Trustees of State Institutions of Higher Learning of the State of M iss issippi EUCLID RAY JOBE, Executive Secretavr of The Board of Trustees of State Institu tions of Higher Learning of the State of Mississippi THE BOARD OF TRUSTEES OF STATE INSTITUTIONS OF HIGHER LEARNING OF THE STATE OF MISSISSIPPI 104 EDGAR RAY IZARD, LEON LOWREY, IRA LAMAR MORGAN MALCOLM METTE ROBERTS, WILL IAM ORLANDO STONE, S. R. EVANS, VERNER SMITH HOLMES, JAMES NAPOLEON LIPSCOMB, TALLY D. RIDDELL__HARRY GORDON CARPEN TER, ROBERT BRUCE SMITH, II, and THOMAS JEFFERSON TUBB as MEMBERS OF THE BOARD OF TRUSTEES OF STATE INSTITUTIONS OF HIGHER LEARNING OF THE STATE OF MISSISSIPPI JAMES DAVIS WILLIAMS, Chancellor of the University of Mississippi ARTHUR BEVERLY LEWIS, Dean of the College of Liberal Arts of the University of Mississippi BY JOE T. PATTERSON, ATTORNEY GENERAL OF THE STATE OF MISSISSIPPI P . M. STOCKETT, JR ., SPECIAL ASSISTANT ATTORNEY GENERAL OF THE STATE OF MISSISSIPPI DUGAS SHANDS, ASSISTANT ATTORNEY GENERAL OF THE STATE OF MISSISSIPPI BY / s / Edward L. Cates ____________________ EDWARD L. CATES, ASSISTANT ATTORNEY GENERAL OF THE STATE OF MISSISSIPPI (This instrument carries proper certificate of service which is not copied here.) sjc j|< % sfc $ sjc SEPARATE ANSWER OF DEFENDANT, ROBERT B, ELLIS, REGISTRAR OF THE UNIVERSITY OF MISSISSIPPI (Title omitted - Filed July 19, 1961) Now comes Robert B. Ellis, Registrar of the University of M iss issippi, one of the defendants herein, and for his separate answer to 105 the complaint herein filed against him by plaintiff says: FIRST DEFENSE 1. Defendant denies that this Court has jurisdiction of this cause under Title 23, U. S. C. A . pl343(3), and that this action is authorized by Title 42, said Code, p i983; defendant denies that plain tiff has been deprived, or discriminated against under color of any state law, state custom, state regulation, or state usage, of or as to any rights granted or secured by the Constitution or laws of the United States; and further denies that plaintiff properly seeks to assert or has any rights under the circumstances alleged in the complaint which are secured, granted or guaranteed by the due process and equal protec tion clauses of the 14th Amendment to the Constitution of the United States. 2. Defendant denies that this is a proper proceeding for a de claratory judgment pursuant to the provisions of Title 28, U. S, C. A* p2201, and that plaintiff represents a class of negro citizens and res i dents of the State of Mississippi; defendant denies that plaintiff or a citizen and resident of the State of Mississippi has a right to attend the University of Mississippi or any other state institution of higher learning; defendant denies that the University of Mississippi is pre sently limited to white students; defendant denies that plaintiff or any white or colored, including negro citizens and residents, citizens and residents of the State of Mississippi have a right to attend the 106 University of Mississippi and other state institutuins of higher learn ing of the State of Mississippi; defendant avers that applications for admission and attendance upon or in the University of Mississippi and any other state institution of higher learning is a mere privilege, and that all applications for, admission to, and attendance in the Univer sity of Mississippi and any other state institution of higher learning must be made, gained or acquired respectively upon the terms and conditions made and specified by the University of Mississippi auth orities, and/or authorities of other institutions, and the Board of Trustees of Institutions of Higher Learning of the State of Mississippi and the members thereof acting in their official capacity; defendant admits or says that plaintiff's application for admission to the Uni versity of Mississippi must be and can only be made and acted upon on the same terms and conditions applicable to white citizens and resi dents of Mississippi, If in fact at the time plaintiff applied for admis sion to the University of Mississippi he was a bona fide resident of the State of Mississippi; defendant is Informed and believes, and there upon denies, that at the time of plaintiff's application for admission to the University of Mississippi he was a bona fide resident of the State of Mississippi or of the City ox Kosciusko, Attala Gounty, Mississippi, within the requirements of the application and as contained In the Gen eral Catalog then in effect with reference to the University of Miss issippi for the year 1960; defendant denies or says that all allegations with reference to any state institution of higher learning other than the 107 University of Mississippi are not pertinent to nor do they have any connection with this suit now pending before this Court; defendant de nies and says that any person who is not a bona fide resident of the State of Mississippi within the terms and provisions set out in said 1960 General Catalog has any right or privilege of any kind to attend the said University of Mississippi; defendant denies all other allega tions of this paragraph. 3. As to paragraph 3 of the complaint, this appears to be mere ly a statement by plaintiff as to what he claims is an explanation of what his proceeding is and what relief he wants and the things and matters as to which he wants an injunction; but in order to avoid any waiver or admission of any kind by this defendant he denies the alle gations of this paragraph of the complaint, if plaintiff construes or seeks to construe or seeks to have the contents of said paragraph con strued as containing any allegation of fact or even conclusions, and defendant says that plaintiff is not entitled to any relief mentioned in said paragraph. 4. As to paragraph 4 of the complaint, defendant denies the allegations thereof except he admits that the plaintiff is an adult negro who claims to be a resident of the State of Mississippi, as shown in his application; defendant denies or says that the only institution of higher learning in the State of Mississippi to which plaintiff has applied for admission is the University of Mississippi, and that any and all 108 allegations in the complaint with reference to any other institution of higher learning of the State of Mississippi are not pertinent to this suit, have no application hereto, and should be stricken or disregard ed by the Court in the trial or hearing of this cause. Defendant admits or recognizes or says that plaintiff or any other negro is entitled to exercise the privilege to apply for admission to the University of M iss issippi but only upon the same terms and conditions applicable to white citizens, and the same privilege applies insofar as to all other state institutions of higher learning in Mississippi; but defendant denies or says that all allegations with reference to any institution of higher learning in the State of Mississippi other than the University of M iss issippi is not applicable to and should not be considered in any way in this cause. 5. As to paragraph 5 of the complaint, defendant admits that plaintiff is an adult negro citizen of the United States, but defendant was informed and believed and thereupon denies that on January 31, 1961, and on February 1 and on May 25 when the first parts of his application were received by the University of Mississippi, and now, that plaintiff was or is a bona fide resident citizen of the State of M iss issippi, City of Kosciusko, Attala County, within the provisions of the said General Catalog of the University of Mississippi heretofore re ferred to. Defendant admits that plaintiff was born in Kosciusko, Attala County, Mississippi, on June 25, 1933, and that he secured his 109 high school and elementary education except for the last year in M iss issippi, and that his last year of high school education was received at Gibbs High School, St. Petersburg, Florida, from which he grad uated in 1951. Defendant admits that plaintiff served from July 28, 1951, to July 27, 1955, and was discharged and that he re-enlisted on October 5, 1955, and served until July 21, 1960, in the armed forces of the United States and was honorably discharged from the Air Force on July 21, 1960. Defendant admits that in September, 1960, plaintiff applied for admission to and was admitted to Jackson State Gollege, Jackson, Mississippi. Defendant admits that from 1951 through 1960 plaintiff attended the University of Kansas, Washburn University, and the University of Maryland - Far East Division, and that plaintiff earn ed some college credits, but upon information and belief denies that those are the only institutions he attended during said period and de fendant so avers that during said period plaintiff also attended Wayne University at Detroit, Michigan, but for only a short time. Defendant is without knowledge or information sufficient to form a belief as to whether plaintiff is eligible for immediate re-admission to the Univer sity of Kansas at Lawrence, Kansas, Washburn University at Topeka, Kansas, the University of Maryland - Far East Division, and Wayne University, and therefore defendant denies said allegation as to said institutions; but defendant admits that plaintiff is now enrolled in the summer school session at Jackson State Gollege, Jackson, Mississippi; 110 defendant denies that plaintiff’s record meets the requirements of the program in the University for which he has applied. Defendant denies a 11 other allegations of this paragraph. 6. As to the allegations of paragraph 6 of the complaint which merely names and designates the defendants in this suit, this defendant admits same but though it will be more fully covered hereinafter this defendant here says that he is informed and believes that the Board of Trustees of State Institutions of Higher Learning is not a suable entity under the Constitution and Laws of the State of Mississippi. 7. As to paragraph 7 of the complaint, defendant denies the allegations thereof; but says that among other things plaintiff purports to set out only part or a portion of the constitutional and statutory provisions dealing with the University of Mississippi, and the statutes themselves are the best evidence and statement of their contents and the power and authority of the Board thereunder. Defendant admits that the institutions of higher learning of the State of Mississippi which are under the management and control of the Board of Trustees of Institutions of Higher Learning are the University of Mississippi, Mississippi State College, Mississippi State College for Women, Mississippi Southern College, Delta State Teachers Gollege, Alcorn Agricultural and Mechanical College, Mississippi Vocational Gollege, and Jackson State College; defendant denies that any state statutes, constitutional provision or state regulation, state practice, state custom or state usage restricts applicants to the University I l l of Mississippi or any other institution of higher learning to any race; defendant denies and says that irrespective of the foregoing whether any other institution of higher learning than the University of Miss issippi is or is not restricted to any race is not relevant to, nor is it pertinent to this suit, and any allegations as to any other institution of higher learning should be stricken or not be considered by this Court in this case. 8. As to paragraph 8 of the complaint, defendant denies the allegations thereof except as he shall specifically admit in this para graph of the answer. Defendant admits or avers that on January 26, 1961, he receiv ed an undated letter from plaintiff, a true copy of which is attached hereto as Exhibit A and made a part hereof and which accurately shows the contents thereof. Defendant admits that on January 26, 1961, he wrote a letter to plaintiff, a true copy of which is attached hereto as a part hereof as Exhibit B which accurately shows its contents, and that he enclosed forms and instructions and sent plaintiff a copy of the General Catalog referred to in said letter. Defendant admits that on January 31, 1961, plaintiff wrote a letter to him, a true copy of which is attached hereto as Exhibit C and made a part hereto which accurate ly shows the contents thereof. Said letter of January 31 contained as the third paragraph thereof the following: "I will not be able to furnish you with the names of six Univer sity Alumni because I am a Negro and all graduates of the 112 school are White. Further, I do not know any graduate person ally. However, as a substitute for this requirement, I am submitting certificates regarding my moral character from Negro citizens of my State. Defendant admits that on January 31, 1961, plaintiff filled out the application form as shown in the works and figures thereon appear ing, inclusive of the student health record a part of which document was prepared by plaintiff's doctor, and enclosed or attached thereto a $10.00 money order payable to the Registrar, University of Mississip pi, as a $10.00 deposit for residence hall assignment, a true copy of said application is attached hereto as said Exhibit D, and which appli cation form and the words and figures therein written upon same accu rately shows the contents thereof. The said application was forwarded by or with said letter of January 31, 1961. Defendant admits that by said application plaintiff sought admission to the Liberal Arts College of the University of Mississippi for the second semester of the 1960-61 school year, which was to commence on February 6, 1961, and that his application indicated he would be a transfer student from Jackson State College, Jackson, Mississippi; defendant denies that the application indicated that plaintiff expected to be classified as a sophomore, and avers that the application clearly states that plaintiff asserted that he expected to be classified as a junior and not as a sophomore. Defendant admits that said letter and application was received by the Registrar on February 1, 1961. Defendant avers that the University of Mississippi, its officials and the defendant Board of Trustees of Higher Learning 113 require that before an applicant, whether he be a transfer or a person entering the freshman class, is entitled to consideration of his appli cation upon the merits for admission to the University of Mississippi, he must be recommended by at least five alumni in accord with said requirements and this requirement applies to every applicant applying as a resident of Mississippi to the University, white or colored in cluding the plaintiff, a negro, a member of the colored race. Defen dant avers that plaintiff failed and refused to submit said names of said alumni and thereby failed and refused to comply with said re quirements; defendant avers that said application, among other things shows that plaintiff's permanent home address was Route 2, Koscius - ko, Mississippi, and that his present mailing address was 1129 Maple Street, Apartment 5-D, Jackson, Mississippi; defendant avers that plaintiff did not submit with said application and has never submitted to the University of Mississippi, or this defendant, or anyone else, a certificate certifying to his good moral character and recommending him for admission to the University of Mississippi in accord with the requirements of said Catalog and rules and regulations; defendant a- vers that plaintiff submitted with said application what purports to be five certificates purporting to have been signed by residents of Kos ciusko, Mississippi, all dated as hereinafter shown, purporting to certify to plaintiff's moral character but none of them recommended him for admission to the University of Mississippi; said purported 114 certificates are attached to the application. Defendant admits that the application asked for a designation of plaintiff's race but defendant a- vers that such is fully covered and volunteered by plaintiff in his letter of January 31, Exhibit C hereto, supra. Defendant admits that on February 4, 1961, this defendant as Registrar of the University of Mississippi and official thereof advised plaintiff by wire that applications for admission for registration for the second semester which were received after January 25, 1961, were not being considered, and denies that such constituted discrimination, if plaintiff actually claims such to have been a discrimination, which is not made clear by the complaint; a true copy of such telegram is attached hereto as Exhibit E and made a part hereof. Defendant admits that on February 21, 1961, he received a letter from plaintiff dated February 20, 1961, a true copy of which accurate ly shows the contents thereof is attached hereto as Exhibit F and made a part hereof. Defendant admits that plaintiff did not receive an im - mediate reply to this letter nor was such either necessary or proper. On February 21, 1961, defendant wrote plaintiff a letter returning to him the $10.00 room deposit previously forwarded with said applica tion, a true copy of which letter accurately shows the full contents thereof is attached hereto as Exhibit G and made a part hereof. On February 25, 1961, defendant received a letter from plaintiff dated February 23, 1961, where among other things plaintiff acknow ledges receipt of defendant's letter of February 21, 1961, and returns 115 to defendant the $10.00 room deposit. Plaintiff in said letter request ed that his application be considered for acceptance during the summer session as outlined by his previous letter of February 20, 1960, which summer session commenced on June 6, 1961, for enrollment; a true copy showing the full contents of plaintiff's said letter of February 23 is attached hereto as a part hereof as Exhibit H hereto. Defendant admits that plaintiff did not receive an immediate reply to his said let ter of 3/13/61 and says that such a reply was neither necessary nor indicated. Defendant admits that on March 20, 1961, he received a letter from plaintiff dated March 13, 1961, a true copy of which showing the full contents thereof is attached hereto as Exhibit I and made a part hereof, in which, among other things, plaintiff asked that his applica tion "be considered as a continuing one for the summer session and the fall session 1961". Plaintiff further asked to advise him whether "all of my transcript from the schools listed on my application have been received, * * * ", revealing that he knew that he had failed to comply with the requirement of the University of Mississippi in its application for admission to list all schools or universities which he had attended. Defendant admits that plaintiff received no immediate reply to said letter of March 18, and says that such a reply was neither necessary nor indicated. Defendant admits that on March 29, 1961, he received from 116 plaintiff a letter written by him on March 26, 1961, with enclosures therein identified which purport to appear to be five letters or state ments from the five persons indicated which certify to his good moral character and recommend him for admission to the University of M iss issippi; this defendant is without information sufficient to form a be lief as to the truthfulness or authenticity of the said five purported let ters or certificates and, therefore, denies same but in order to give a full picture hereof attaches a true copy of the said letter as Exhibit J hereto as a part hereof. Defendant admits that plaintiff did not receive an immediate reply to this letter and says that such a reply was neither necessary nor indicated. Defendant admits that on April 4, 1961, in connection with or as a part of plaintiff’ s original application plaintiff did furnish five written instruments which did not recommend plaintiff’ s admission to the Uni versity of Mississippi as required by the University of Mississippi but which defendant admits, if they be valid and authentic, which defendant is without sufficient information to form a belief as to whether they are valid and, therefore, denies same, purport to attest to his good moral character. Defendant admits upon information and belief that on April 12, 1981, plaintiff wrote a letter to Dr. Arthur Beverly Lewis, Dean, College of Liberal Arts, University of Mississippi, Oxford, Mississip p i which itself shows the full contents thereof and a true copy of which 117 is attached hereto as Exhibit K, and that such was received by Dr. Lewis on or about the 13th day of April, 1961, and several days later this defendant saw a copy thereof. This defendant avers that he was shocked, surprised and disappointed that plaintiff under the circum - stances with which plaintiff was or should have been acquainted, or which plaintiff knew or should have known, that plaintiff would so rash ly and so unjustifiedly conclude that he, this defendant, had failed to act upon plaintiff's application solely because of plaintiff's race and color, and thereby to make such a serious and unjustified charge again st this defendant, and that plaintiff would make the statement that he had attempted to comply with all of the admission requirements under the circumstances well known to him; defendant was further so sur prised, disappointed and amazed that plaintiff would arrogantly demand in view of the foregoing that Dean Lewis give plaintiff "some assurance that my race and color are not the basis for my failure to gain admis sion to the University;" all because such was uncalled for, unjustified, unwarranted and constitutes such an attitude, outlook and debasement of the University and this defendant and of Dr. Lewis, which this defen dant had not expected from plaintiff and had no reason to anticipate or expect that such an unwarranted and unjustified charge of so serious a nature would be so recklessly alleged by plaintiff. Defendant is advised and believes and thereupon avers that said defendant Dean did not reply to said letter and so says that no letter would have been either proper, 113 indicated or Justified. Defendant admits that on May 9, 1961, he wrote a letter to plaintiff which accurately shows the full contents thereof, a copy of which is attached hereto as Exhibit L and made a part hereof. Defendant calls the Court’s special attention to the second sentence on page 7 of the complaint beginning at line 5 of the word "however", and continuing through line 22 thereof ending with the word "application" wherein plaintiff by said complaint doth propose to restate either part or substantially all of this defendant's letter of said May 9, 1961, and defendant says that upon comparison of said portion of said complaint with the letter itself it is apparent how incorrect is plaintiff's statement in the complaint and how unjustified plaintiff's charges are in connec tion with said letter. Defendant admits that on May 16, 1961, he r e ceived from plaintiff a letter written by him on May 15, 1961, a true copy of which is attached hereto as Exhibit M and which shows the full contents thereof; defendant admits that among other things in said let ter plaintiff asserted and demanded that plaintiff's application thereto fore submitted to this defendant and thereby to the University of Miss- issippi be "treated as a pending application for admission to the sum mer session beginning with the first term, June 1961. Defendant admits that with plaintiff's said letter of May 15, he received the enclosure mentioned therein, a true copy of which enclosure being a letter from Plaintiff to Director of Men's Housing, University of Mississippi, is attached hereto as Exhibit N as a part hereof, and which shows the full 119 contents of such letter. Defendant admits that plaintiff did not receive an immediate reply to the said letters and says that such was neither necessary nor indicated. The proper authorities of the University of Mississippi with full authority so to do established a policy that no cre dits would be received or honored or recognized by the University of Mississippi from any institution which is not a member of a regional accrediting association or a recognized professional accrediting asso ciation. Further, as to plaintiff's letter of May 15, 1961, addressed to this defendant and received by the latter on May 16, 1961, this defen dant was amazed and shocked that plaintiff, could in good faith, be seek ing to apply for entrance and gain entrance to the University of Miss issippi when the greatest number of credits which could be allowed, in any event, if his application were approved for admission, were deter mined to be 48 hours at which preliminary stage of the evaluation, when in fact plaintiff was offering for evaluation 90 hours but the greatest a- mount of credit which could be given should plaintiff's application be considered and approved, would be 33 hours, when plaintiff would be offering some several hours in excess of 100 hours which would mean that plaintiff would lose one year to one and one-half years time in at tending college; and from plaintiff's knowledge and acquaintance with the circumstances surrounding the benefits of the GI Bill as to contri butions to former service men, this defendant believed that such a 120 reduction in hours and such a change in course by plaintiff would cause plaintiff to lose all of his GI benefits and this, the defendant knew, woulc be quite detrimental to plaintiff. Defendant admits that on or about May 23, 1961, he received a letter from plaintiff dated May 21, 1961, a true copy of which is attach ed hereto as Exhibit 0 and made a part hereof and which shows the full contents thereof. This defendant noticed and was shocked and amazed that plaintiff would again make so rash an assumption as set out in the last sentence of Paragraph 1 of said letter of May 21, 1961, in view of the explicit statements and contents of defendants’ letter of May 9, 1961, addressed to and which had been received by plaintiff; defendant says that such assumption was thoroughly and totally unjustified and raised grave questions in his mind concerning plaintiff, his application and his efforts to gain admission to the University of Mississippi and his ability to conduct himself as a normal person and a harmonious student on the compus of the University of Mississippi. Defendant admits that on May 25, 1961, he wrote a letter to plain tiff, special delivery, which this defendant admits was received by plaintiff on May 26, 1961, wherein defendant denied plaintiff's applica tion for admission to the University of Mississippi according to the terms of said letter, a true copy of which is attached hereto as Exhibit p and made a part hereof and which correctly shows the contents there of* In connection with said letter of May 25, 1961, written by defendant 121 to plaintiff, defendant draws the Court's attention to the contents to the Complaint, Page 7, last three lines thereof and the first two lines of Page 3, which constitute the last five lines of Paragraph 3 of the Com plaint wherein, plaintiff among other things, says that one of the grounds for rejecting or not approving plaintiff's application for admission to the University of Mississippi was that plaintiff "attended a non-accredited college ***" and as to that statement, defendant asks the court to com pare it with the contents with his letter of May 25, 1961, to plaintiff and further, defendant says that the use of the words "non-accredited co ll ege" is not in said letter of May 25, 1961, and does not correctly state the contents thereof which this defendant says is very clear and definite and defendant says that what plaintiff should have said is that the insti tution which plaintiff was then and is now attending is not a member of the Southern Association of Golleges and Secondary Schools which is quite an entirely different statement which is used by the plaintiff; this defendant says further that he cannot understand why defendant by plain tiff did not correctly state such part of said letter as plaintiff chose to state in the said Complaint. Defendant admits that on May 26, 1961, he received a telegram from plaintiff, a true copy of which is attached hereto as Exhibit Q, which accurately shows the contents thereof. Defendant avers that upon his receipt of plaintiff’ s above-mentioned telegram of May 26, 1961, defendant sent a telegram to plaintiff, a true 122 copy of which is attached hereto as Exhibit R and made a part hereof and which accurately shows the contents thereof. Defendant avers that all letters received by him from plaintiff were sent registered mail return receipt requested. Defendant further avers that plaintiff's application for admission to the University of M iss issippi was rejected because of it and his failure to meet the require ments as properly adopted by the University and approved by the Board of Trustees, and such rejection was not made because of race. As to paragraph 9 of the complaint: Defendant admits that all applications for admission to the College of Liberal Arts of the University of Mississippi to which plain tiff seeks admission are required to be submitted to the Registrar and that the Catalog of the University of Mississippi requires each applicant to file with the Registrar five letters from responsible citizens who have known the applicant for at least two years, certifying to the applicant's good moral character and recommending his admission to the Univer sity. Defendant further admits that every applicant for admission to the University of Mississippi who resides in or is a resident of Mississippi as defined by the provisions of said Catalog must be recommended by citizens of his county who are University alumni, but that applicants who reside or who are non-residents of the State of Mississippi according to the provisions of said Catalog of another state may secure the neces sary recommendations from any five responsible citizens of his 123 community. Defendant avers or admits as alleged in the complaint that plaintiff by his application was last enrolled in Jackson State College, Jackson, Mississippi, and that, as apparent from the application and the complaint, plaintiff applied for admission to the University of Mississip pi as a transfer student from Jackson State College, Jackson, Mississip pi* Defendant avers that there are certain provisions of the said Cat alog of the University of Mississippi, General Catalog Issue No. 1960, which were in effect at all times mentioned in this action with reference to "Admission of Transfer Students: Advanced Standing" and which in part is as follows: "Admission of Transfer Students: Advanced Stand ing". Students may be admitted from other approved institutions of higher learning upon the presentation of official transcripts of credits which certify honorable dismissal and eligibility for Immediate re admission. Transcripts must provide a detailed statement of prepara tory units (which must satisfy all requirements for admission to the freshman class), and a record listing all college credits and grades. "The Registrar, under the direction of the Committee on Admis sions, will provide each transfer student with an evaluation of the cre dits acceptable to the University. The Dean of the college or the school to which the student is admitted will inform the student the extent to which his credits will apply toward the degree sought. " Defendant avers and states that the University of Mississippi 124 Catalog draws and makes a distinction between and applicant for ad mission and a transfer student and that the plaintiff's was an applicant for admission as a transfer student to the University of Mississippi, which pre-requisites and requirements to transfer to the University were not met by the plaintiff. Defendant avers that there are provisions of the said 1960 Catalog of the University of Mississippi pertaining to the admission of transfer students, advanced standing, and to non-resident students of which plaintiff knew or with which he is charged with knowledge. Defendant denies if plaintiff be a resident applicant of Mississippi, but which de fendant denies, that plaintiff is not able to secure recommendation by citizens of his county who are University alumni for the reason that plaintiff is a negro citizen and resident of the State of Mississippi, and denies that plaintiff had or has knowledge that there are not now and never has been any negro graduate of the University of Mississippi, and denies that such is a fact of common and historical knowledge recogniz ed by the laws of Mississippi cited above, and denies that the laws re - ferred to in the complaint establish separate institutions of higher learn ing as to which applications for admission to or attendance in is re stricted to negroes; and defendant avers that exclusive of plaintiff's application, plaintiff has not designated what county in Mississippi is his (plaintiff's) county, and avers that this defendant does not know and is without sufficient information to form a belief as to the truth of any 125 averment as to what is "his” (plaintiff's) "county" and that, therefore, he denies same and defendant avers that he is without knowledge or in formation sufficient to form a belief as to the correctness of plaintiff's allegations that: "* * * there are not now and never have been any Negro graduates of the University of Mississippi, * * *" and, there fore, he denies same; defendant was advised and believed and still be lieves and thereupon avers that on January 31, 1961, and continuously since then the plaintiff was not and is not an adult resident citizen of the City of Kosciusko County, State of Mississippi, and was so advised and believed on May 25, 1961, and among the things which caused him to so believe that plaintiff is not an adult resident citizen of Kosciusko, Attala Gounty, Mississippi, or the City of Jackson, Hinds County, Mississippi, in accord with the requirements and provisions of the said Catalog is that there are conflicting statements by plaintiff as between various provisions of the application and the contents of the credit cer tificates from Washburn College; this defendant's information and be lief has been proven correct and his suspicion verified by the occurence of things and matters with which the plaintiff is thoroughly familiar, such as his registration papers and poll tax exemption certificate which he created or caused to be created in and about his registration upon the voter rolls of Hinds County, Mississippi, City of Jackson, --plain tiff did not rest with merely registering in the office of the Circuit Clerk but also registered in the office of the City Clerk in the City Hall 126 at Jackson; and defendant denies that any laws cited in plaintiff’ s com plaint establishes that it is a fact of common and historical knowledge that there have never been any negro graduates of the University of Mississippi and so denies that the laws of Mississippi so recognize. Defendant avers that he is without knowledge or information sufficient to form a belief as to plaintiff’s allegation that plaintiff "does not know any white alumni of the University of Mississippi who would recommend his admission" (to the University of Mississippi) and, therefore, he denies said allegation; defendant denies that there is any policy of segregation complained of or stated in the Complaint which he believes would have any effect upon whether a white alumni of the Uni versity of Mississippi would recommend plaintiff for admission to the University of Mississippi; defendant avers that he is without knowledge or information sufficient to form a belief as to the truth of plaintiff's allegation that there is a State of Mississippi official opposition to de segregation and, therefore, he denies said allegation; defendant avers that plaintiff has not given or stated any valid and efficacious reason why he should not be required to meet the same requirement as to cer tificates of good moral character and recommendations for admission to the University of Mississippi as is required of white applicants for admission to said University, and defendant avers that unless plaintiff wants and expects to receive special treatment instead of equal treat ment he must be required to meet all requirements for admission, 127 which are demanded of and received from other persons who apply for admission to said University. Defendant denies that the alumni certifi cation requirement is unconstitutional as applied to him and other neg roes for the reason that it places a burden on negroes seeking admis sion to the University of Mississippi which is not shared by white res i dents seeking admission to the University of Mississippi. Defendant avers that he is without knowledge or information sufficient to form a belief as to the truth of plaintiff's allegation that he is or was on Janu ary 31, 1961, and since then including the present an adult bona fide resident citizen of the State of Mississippi, Gity of Kosciusko, Attala County, or Hinds County, Mississippi, within the purview and require ments of a resident "or residence" contained in and required by the said General Catalog of the University of Mississippi for the year of 1960. Defendant avers that plaintiff's application and his efforts to gain admission to the University of Mississippi have been made upon the basis or predicate that he is and has been within the purview of said requirements as defined in said catalog as to residence-an adult resi dent citizen of the State of Mississippi, Kosciusko, Attala County, Miss* issippi. Defendant denies that the alumni certification requirement is unconstitutional bacause in operation and effect it admits the better and higher type of student by requiring such recommendations in order that such prospective resident applicant procure same. Defendant is advised and believes, and so believed on May 25, 128 1961, that plaintiff was not seeking admission to the University of Miss issippi in good faith for the purpose of securing an education and that upon all of the facts and circumstances incident to and connected with his application for admission, this defendant concluded that plaintiff did not have and would not have the proper respect for an education and the education process and necessary incidents thereof and thereto. This defendant also believed that a transfer from Jackson State College to the University of Mississippi with the resultant decrease in hours of credit would jeopardize plaintiff's future benefits under the G. I. Bill of Rights; defendant's attitude and outlook caused this defendant to believe and con vinced him that plaintiff did not have a normal, average, harmonious and proper regard for accuracy and consistency in statements of fact; defendant believed and still believes that plaintiff did not have proper re gard for truth and veracity and that he was too ready and willing to make such statements as he thought would advance his cause which defendant believes was solely to become a student at the University of Mississippi irrespective of how he did it. Defendant avers that plaintiff's applications was not considered on its merits as such, but that the reasons expressly assigned in the defendant's letter of May 25, 1961, either or both, are valid and proper reasons for rejecting plaintiff's said application; the reasons then exist ing which were referred to in said letter but which were not specified or set out, were themselves valid and sufficient for said rejection and this defendant refrained from specifying or setting out said unassigned 129 reasons because of his concern for the plaintiff; such reasons, assign ed or unassigned, as aforesaid, either one or more or all or any com binations thereof, constituted in the mind of this defendant more than ample reason and justifications for rejecting said application without reaching the merits of whether the plaintiff meets the scholastic require ments and other considerations which would be made upon a determina tion of full consideration of said application. Under established rules and regulations of the Board of Trustees of Institutions of Higher Learning no institution is required to accept a transfer student unless the previous program of the transferring college is acceptable to the receiving Institution, and the program of studies completed by the student and other considerations are acceptable to the receiving institution, in this instance the transferring college is Jackson State College and the receiving institution is the University of Mississip pi, and the said University acting through its officials have defined and determined that the previous program of Jackson State College is not acceptable to the University because Jackson State College is not a mem ber of the Southern Association of Colleges and Secondary Schools, and which order and regulation of the Board of Trustees of Institutions of Higher Learning is valid and efficacious and so is that of the University of Mississippi acting through Its officials. As to all other allegations hi said paragraph of the Complaint, the defendant denies same. 10. As to the allegations of Paragraph 10 of the Complaint: 130 Defendant denies that plaintiff meets all of the requirements for admission to the University of Mississippi as a transfer student; defen dant avers that he is without knowledge or information sufficient to form a belief that plaintiff is ready, willing and able to pay all fees and tui tion charges required of all other students and, therefore, defendant denies said allegations of this paragraph of the Complaint; defendant a- vers that he does not believe that plaintiff is ready, willing and able to abide by all rules and regulations of the University of Mississippi which are applicable to all other students and, therefore, he denies said alle gations of this paragraph of the Complaint; as to all other allegations of this paragraph of the Complaint, the defendant denies same, 11. As to the allegations of Paragraph 11 of the Complaint this defendant denies same except defendant admits that when plaintiff filled out his application for admission to the University of Mississippi plain tiff plainly stated his race and that he stated his race in his letter to this defendant which was accompanied by plaintiff’s application, herein above referred to. Defendant denies that he understands and interprets the policy of the State of Mississippi as being that negroes and whites are educated in separate institutions of higher learning, but says that he is without knowledge or information sufficient to form a belief as to the truth of plaintiff's allegation insofar as other officials and residents may be concerned that they clearly understand and interpret that the policy of the State of Mississippi is that negroes and whites are educat- e(i in separate institutions of higher learning; this defendant further 131 says that irrespective of whatever other officials and residents of this State may or may not understand and interpret, and Irrespective of any such alleged policy of the State of Mississippi, such does not have any** thing to do with this lawsuit or the power and authority of the defendant Board of Trustees and this defendant. 12. As to paragraph 12 of the complaint, defendant denies the allegations thereof. SECOND DEFENSE MOTION OF DEFENDANT TO DISMISS FOR LACK OF JURISDICTION - IMMUNITY Now comes the defendant Robert B. Ellis, Registrar of the Uni versity of Mississippi, and moves the Court to dismiss this action be cause from the face of the Complaint, it is apparent that this Court does not have jurisdiction of this cause in that: The plaintiff in this action alleges that he is an adult resident citizen of the State of Mississippi and that all other defendants including the Board of Trustees of State Insti tutions of Higher Learning are citizens of the State of Mississippi; all defendants are sued and complained of in their official and representa tive character and are immune from this suit by plaintiff; have not waiv- ed such immunity and this defendant asserts his immunity; the Board of Trustees of State Institutions of Higher Learning of State of Mississip pi is an agency of said state created by the Constitution of the State of 132 Mississippi and the said state has not granted plaintiff or anyone else the right or authority to sue this defendant or the said Board of Trus tees of State Institutions of Higher Learning and he does not consent to this suit; this suit Is in substance and effect a suit against the State of Mississippi, which is immune from said suit by plaintiff and the said state has not granted authority to plaintiff or anyone else to sue it in this cause and has not, does not, and cannot consent to suit in this ac tion, and has not waived its immunity from this suit. This action is in effect one for a Writ of Mandamus from this Court demanding this defendant as an official of the State of Mississippi to do or perform an affirmative act and this Court has not right to issue a Writ of Mandamus or any other Writ comparable or which seeks or does reach the same result as a Writ of Mandamus thereto in this causa THIRD DEFENSE MOTION TO DISMISS FOR LACK OF DIVERSITY OF CITIZENSHIP AND JURISDICTIONAL AMOUNT Now comes Robert B. Ellis, Registrar of the University of Miss issippi, one of the defendants in this cause and moves this Court to dis miss this action against him on the ground that if there be no Federal question in this action arising under the Constitution and laws of the United States, this Court is without jurisdiction because from the face of the Complaint it appears that there Is no diversity of citizenship as 133 between the person plaintiff and this defendant or any other defendant and that the amount, if any, in controversy does not equal Ten Thou sand Dollars ($10,000) exclusive of interest and cost. FOURTH DEFENSE Plaintiff is barred from maintaining this action because it is apparent that he does not come into this Court of Equity with clean hands. FIFTH DEFENSE Defendant says that plaintiff is estopped to bring this suit because of facts and circumstances appearing upon and from the face of the Complaint. THE DOCTRINE OF ABSTENTION This defendant asserts that the Court should apply the Doctrine of Abstention in this cause and abstain from any further proceedings herein until the Courts of the State of Mississippi have passed upon and acted upon questions effected and controlled by local law, in that: Plaintiff has alleged various claims and the existence of various rights under the Constitution and Laws of the United States but the ex istence or non-existence of those alleged rights under the Constitution and Statutes of the United States basically depend upon questions of local 134 law and their construction of the rights, powers and duties not only of the plaintiff but of this defendant and other defendants in this cause, and these questions of local law and interpretation control and affect the rights, powers, and duties of the defendant. Abstention by this Court pending authoritative decision of said questions of state and local law and the respective rights, duties and obligations of the party plaintiff and defendants in this cause by state courts of the State of Mississippi is the best interest of all parties here to and may avoid the necessity of the determination of any questions under the Federal Constitution and avoid any unnecessary conflict be tween the State and Federal Courts on many intricate questions herein. WHEREFORE, this defendant says that neither plaintiff nor any one else is entitled to or should have any relief of any kind, nature or description upon the said complaint and that the Court should deny all relief hereunder and tax all costs incurred herein against the plaintiff. Respectfully submitted, ROBERT B. ELLIS, REGISTRAR OF THE UNIVERSITY OF MISSISSIPPI BY JOE T. PATTERSON, ATTORNEY GENERAL OF THE STATE OF MISSISSIPPI 135 P . M. STOCKETT, JR ., .SPECIAL ASSISTANT ATTORNEY GENERAL OF THE STATE OF MISSISSIPPI DUGAS SHANDS, ASSISTANT ATTORNEY GENERAL OF THE STATE OF MISSISSIPPI BY / s / Edward L. Cates........... .... EDWARD L. CATES, ASSISTANT ATTORNEY GENERAL OF THE STATE OF MISSISSIPPI VERIFICATION STATE OF MISSISSIPPI COUNTY OF HINDS This day personally appeared before me, the undersigned auth* ority in and for the aforesaid State and County, Robert Byron EUis, who after being by me first duly sworn on oath says that he is one of the defendants in the foregoing cause, that he has ready the foregoing answer and knows the contents thereof, and that the same are true to the best of his knowledge and belief except as to the matters therein stated to be alleged on information and belief, and as to those matters he thoroughly believes them to be true. / s / Robert B. Ellis ROBERT BYRON ELLIS 136 Sworn to and subscribed before me this the 19th day of July, 1961. / s / Heber Ladner______ HE3ER LADNER SECRETARY OF STATE My Commission Expires: January 1964 (SEAL) (This instrument carries proper certificate of service which is not copied here.) EXHIBIT "A" J H MEREDITH 1129 Maple Street Apartment #5 - D Jackson, Mississippi REGISTRAR University of Mississippi University, Mississippi Dear Sir: Please send me an application for admission to your school. Also, I would like to have a copy of your catalog and any other information that might be helpful to me. Thank you. Sincerely, / s / J H Meredith RECEIVED Jan 26 1961 REGISTRAR Univ. of Miss. 137 EXHIBIT l!B" January 26, 1961 Mr. J. H. Meredith 1129 Maple Street Apartment 5D Jackson, Mississippi Dear Mr. Meredith: We are very pleased to know of your interest in becoming a member of our student body. The enclosed forms and instructions will enable you to file a formal application for admission. A copy of our General Information Bulletin, mailed separately, will provide you with detailed information. Should you desire additional information or if we can be of further help to you in making your enrollment plans, please let us know. Sincerely yours, Robert B. Ellis Registrar rd Enclosures G IB 138 EXHIBIT "C" J H MEREDITH 1129 Maple Street Apartment 5-D Jackson, Mississippi 31 January, 1961 Office of the Registrar The University of Mississippi Division of Student Personnel University, Mississippi Dear Mr. R ob erts . Ellis: I am very pleased with your letter that accompanied the application forms you recently sent to me. I sincerely hope that your attitude toward me as a potential member of your student body reflects the attitude of the school, and that It will not change upon learning that I am not a White applicant. I am an American-Mississlppi-Negro citizen. With all of the occurring events regarding changes in our old educational system taking place in our country in this new age, I feel certain that this application does not come as a surprise to you. I certainly hope that this matter will be handled in a manner that will be complimentary to the University and to the State of Mississippi. Of course, I am the one that will, no doubt, suffer the greatest consequences of this event, therefore, I am very hopeful that the complications will be as few as possible. I will not be able to furnish you with the names of six University Alumni 139 because I am a Negro and all graduates of the school are White. Further, I do not know any graduate personally. However, as a substitute for this requirement, I am submitting certificates regarding my moral character from Negro citizens of my State. Except for the requirement mentioned above, my application is complete. All colleges previously attended have been contacted and my transcripts should already be in your office or on the way. I am requesting that immediate action be taken on my application and that I be notified of its status, as registration begins on February 6th, 1961, and I am hoping to enroll at this time. Thank you very much. Very hopefully yours, / s / JH Meredith J H MEREDITH Applicant (Exhibit "Dn is not copied here because upon order of the Court the original will go up with the record .) 140 EXHIBIT "E" WESTERN UNION TELEGRAM Charge to the account of Registrar ** Ext. 251 To _______ ___________ Feb. 4 1961 Street and No.________ .________________________ , .... . , ......... - Care of or Apt. No.__________________ Destination.................. .... For vour Information and guidance it has been found necessary to discontinue consideration of all applications for admission or registration for the second semester which were received after January 25. 1961. Your application was received subsequent to such date and thus we must advise you not to appear for registration. Robert B. Ellis, Registrar Ext.' 251 EXHIBIT "F 11 J H MEREDITH 1129 Maple Street Apartment 5-D Jackson, Mississippi February 20, 1961 Office of the Registrar The University of Mississippi Division of Student Personnel University, Mississippi Dear Mr. Robert B. Ellis: Reference your telegram, dated, February 4, 1961. I am very disappointed because it was found necessary to discontinue considera tion of applications for admission or registration for the second 141 semester prior to the receipt of my application. In view of this fact, I am requesting that you consider my application for admission to your school a continuing application for admission during the summer sessioi beginning June 8, 1961. Have you received all of the information necessary to make my application for admission a complete one? Did you receive transcripts from the University of Kansas, Washburn University, The University of Maryland, and Jackson State College, complete with a certificate of honorable dismissal or a certificate of good standing? I am requesting that immediate action be taken on my application and that I be notified of its status. Again, I would like to express my gratitude for the respectable and humane manner in which you are handling this matter and I am very hopeful that this procedure will continue. Thank you very much. Sincerely yours, / s / J H Meredith J H MEREDITH Applicant RECEIVED Feb 21 1961 REGISTRAR Univ, of Miss. 142 EXHIBIT "G" February 21, 1961 Mr. J. H. Meredith 1129 Maple Street Apartment 5-D Jackson, Mississippi Dear Mr. Meredith: Since we were unable to accept your application for admission, I am returning your money order in the amount of $10 which was submitted as a room deposit. Sincerely yours, Robert B. Ellis Registrar cw Enclosure EXHIBIT "H" J H MEREDITH 1129 Maple St. Apt 5D Jackson, Mississippi 23 February, 1961 Office of the Registrar The University of Mississippi Division of Student Personnel University, Mississippi Dear Mr. Ellis: Reference your letter of February 21, 1961. I am returning to you the money order in the amount of $10.00 for a room deposit, since I have requested that my application be considered for acceptance during the 143 summer session, Sincerely yours, / s / J H Meredith J H MEREDITH Applicant Enclosure RECEIVED Feb 25 1961 REGISTRAR Univ, of Miss. EXHIBIT "I" J. H. MEREDITH 1129 Maple Street Apartment 5-D Jackson, Mississippi 18 March, 1961 Mr. Robert B. Ellis Office of the Registrar The University of Mississippi Division of Student Personnel University, Mississippi Dear Mr. Ellis: Reference my letter of February 20, 1961, which was received by your office on February 21st, 1961, to date I have not received an answer. I am requesting that my application be considered as a continuing one for the Summer Session and the Fall Session, 1961; also, please advise me as to whether all of my transcripts from the schools listed on my application have been received, complete with a certificate of honorable dismissal or a certification of good standing; further, advise me whether there remains any further prerequisites to admission 144 which I have not yet completed. Please acknowledge this letter. Thank you. Sincerely yours, / s / J H Meredith J H MEREDITH Applicant RECEIVED Mar 20 1961 REGISTRAR Univ. of Miss. EXHIBIT "J" J H MEREDITH 1129 Maple Street Apartment 5-D Jackson, Mississippi March 26, 1961 Mr. Robert B. Ellis Registrar The University of Mississippi University, Mississippi Dear Mr. Ellis: Reference my application for admission to the University of Mississippi, dated January 31, 1961, my letter of January 31,1961, my letter of February 20, 1961, and my letter of March 18, 1961. Please note the Bulletin of The University of Mississippi, General Catalog Issue 1960, page 83, which states that "the Registrar, under the direction of the Committee on Admissions, will provide each 145 transfer student with an evaluation of the credits acceptable to the Uni versity. " Please send me a copy of my evaluation immediately. Also, on page 83, it states that ,!the dean of the college or the school to which the student is admitted will inform the student to the extent which his credits will apply toward the degree sought." If it is approp riate at this time, I would like to be informed on this matter. Note also, on page 82, under "Admission Requirements". Reference my letter of January 31, 1961, which contained as enclosures, five certificates attesting to my good moral character, but did not recom mend me for admission to the University of Mississippi. Attached herewith is an additional letter from each of these five persons, cer tifying my good moral character and recommending me for admission to the University. Again, I would like to take this occasion to express my sincere hope fulness that my application will be processed in the normal manner and that I be informed of its approval or disapproval. However, realizing that I am not a usual applicant to the University of Mississippi, and that some timely items might need to be considered, I certainly hope that the entire matter will be handled in a manner complimentary to the University of Mississippi. 146 Thank yon and I hope to hear from you soon. Sincerely yours, / s / J K Meredith J H MEREDITH Applicant Enclosures 1. Ltr fr Rev. S.L. Brown 2. Ltr fr Mr. L. L. Keaton 3. Ltr fr Mr. Milton Burt 4. Ltr fr Mr. Henry Newell 5. Ltr fr Mr. Lannie Meredith P. S. Will you please send me a copy of the General Catalog Issue for 1961. RECEIVED Mar 29 1961 REGISTRAR Univ. of Miss. EXHIBIT "K" J. H. Meredith 1129 Maple Street Apartment 5-D Jackson, Mississippi April 12, 1961 Dr. Arthur Beverly Lewis Dean, College of Liberal Arts University of Mississippi Oxford, Mississippi Dear Dr. Lewis: In January 1961, I obtained an application for admission to the University of Mississippi from Mr. Robert B. Ellis, Registrar of the University and mailed same to him on January 31, 1961. 147 After my application was received by the Registrar, I received from him a telegram on February 4, 1961, advising me that applica tions for admission or registration for the Second Semester received after January 25, 1961, were not being considered. On February 20, 1961, I wrote to Mr. Ellis and advised him that 1 would like my application to be considered a continuing applica tion for the Summer Session beginning June 8, 1961 * I did not receive a reply from Mr. Ellis and, therefore, on March 18, 1961, I wrote him once again requesting that my application be considered a continuing one for the Summer Session and for the Fall Session 1961. I have not received a reply to my March 18th letter. On March 26, 1961, I wrote to Mr. Ellis again regarding my application. Again I have not received a reply from Mr. Ellis. When I forwarded my application to Mr. Ellis on January 31,1961, I stated in a letter to him and in my application that I am a Negro citi zen of Mississippi. Because of my failure to hear from Mr. Ellis since his telegram to me of February 4, 1961, I have concluded that Mr. Ellis has failed to act upon my application solely because of my race and color, especially since I have attempted to comply with all of the admission requirements and have not been advised of any defic iencies with respect to same. 148 Dr. Arthur Beverly Lewis April 12, 1961 I am, therefore, requesting you to review my case with the Reg istrar and advise me what admission requirements, if any, I have fail ed to meet, and to give me some assurance that my race and color are not the basis for my failure to gain admission to the University. Sincerely yours, / s / J H Meredith J, H. MEREDITH EXHIBIT "L 11 May 9, 1961 J. H. Meredith 1129 Maple Street Apartment 5-D Jackson, Mississippi Dear Sir: I have seen your letter of April 12, 1961, to Dr. Arthur Beverly Lewis, Dean of the College of Liberal Arts. Of course, your application has been received and will receive proper attention. In connection with your inquiry as to receipt of transcripts of credits from the colleges listed in your application, I have received the tran scripts each of which shows a certificate of honorable dismissal or cer tification of good standing. 149 As to your request for an evaluation of your offered credits, I believe I snould advise you at this preliminary stage that my evaluation of your credits indicates that under the standards of the University of M ississ ippi the maximum credit which could be allowed is forty-eight (48) semester hours if your application for admission as a transfer student should be approved. By your transcripts you offer a total of ninety (90) semester hours credit. My evaluation of your credits is not in any way a determination or de cision as to whether your application for admission will be approved or disapproved or of its sufficiency. In view of the foregoing, please advise if you desire your application to be treated as a pending application. Yours truly, Robert B. Ellis Registrar RBE :cw 150 EXHIBIT "M" J H MEREDITH 1129 Maple Street Apartment 5-D Jackson, Mississippi May 15, 1961 Mr, Robert B, BHis Registrar The University of Mississippi Division of Student Personnel University, Mississippi Dear Sir: I received your letter of May 9, 1961, and I am indeed pleased to know that my application will receive proper attention. In answer to your question as to whether I desire to have my application treated as a pending application; It Is my desire that my application be treated as a pending application for admission to the Summer Session, beginning with the First Term, June 1961; and please advise me if there is anything further that I should do in order to complete my appli cation. Also, you stated in your letter that your evaluation of my credits was not in any way a determination or decision as to whether my application for admission will be approved or disapproved or of its sufficiency. Of course, at this point, it is imperative that I be positively informed with respect to approval, disapproval, and/or sufficiency of my application, because I am married and will have to make appropriate arrangements 151 for my family in any event. Therefore, I will be pleased to know the status of my application at the earliest possible date. It certainly would be a grand accomplishment if we could devise a system of education whereby all capable and desirous prospective recip ients could receive the desired training without having to suffer the consequencies of undesirable concomitant elements. Thank you. Yours truly, / s / J H Meredith J H Meredith Applicant Enclosure: Letter of Application to the Director of Men's Housing, RECEIVED MAY 16 1961 REGISTRAR IJniv. of Miss. EXHIBIT !,N" J H MEREDITH 1129 Maple Street Apartment 5-D Jackson, Mississippi May 15, 1961 Director of Men's Housing The University of Mississippi University, Mississippi Dear Sir: Please regard this letter as an application for occupancy of one of the University apartments appropriate for my family size. I have a wife and one child - age one (1). I have already on file with your office an application for housing in one of the Men's residence halls. If, I am admitted to the University, and it is at a time prior to the availability of an apartment, I would desire domitory accommodations until an apartment becomes available. Enclosed is a Money Order for $25.00 as a security deposit. Thank you. Yours truly, / s / J H Meredith J H MEREDITH RECEIVED MAY 16 1961 REGISTRAR Univ. of Miss. 153 EXHIBIT "O'1 J H MEREDITH 1129 Maple Street Apartment 5-D Jackson, Mississippi May 21, 1961 Mr. Robert B. Ellis Registrar The University of Mississippi Division of Student Personnel University, Mississippi Dear Sir: You wrote me on May 9, 1961, requesting that I inform you whether I still wanted my application considered as pending for admission. I indicated in my reply that I did wish admittance for the First Summer Session, beginning June 8, 1961. To date, I have not received an answer. I assumed by the nature of your request that my application was entirely complete and that I have met all of the pre-registration requirements of the school, and that I am otherwise qualified, and now all I need is a "statement of admission" from you. Please advise me on this matter, so that I can make plans for attend ing the University this summer. 154 If you have already sent such instructions to me, please excuse this letter. Thank you. Yours truly, / s / J H Meredith J H MEREDITH Applicant EXHIBIT "P" May 25, 1961 Mr. J. H. Meredith 1129 Maple Street Apartment 5-D Jackson, Mississippi Dear Mr. Meredith: I regret to inform you, in answer to your recent letters, that your application for admission must be denied. The University cannot recognize the transfer of credits from the insti tution which you are now attending since it is not a member of the Southern Association of Colleges and Secondary Schools. Our policy permits the transfer of credits only from member institutions of region al associations. Furthermore, students may not be accepted by the University from those institutions whose programs are not recognized. As I am sure you realize, your application does not meet other require ments for admission. Your letters of recommendation are not 155 sufficient for either a resident or a nonresident applicant. I see no need for mentioning any other deficiencies. four application file has been closed, and I am enclosing with this letter your money orders for $10.00 and $25.00 which you submitted to me earlier. Sincerely yours, Robert B. Ellis Registrar RBE :cw Enclosures EXHIBIT "O." WESTERN UNION TELEGRAM 0X0 PD- JACKSON MISS 26 1049A C3T=“ “ ROBERT B ELLIS REGISTRARS ORZ= PLEASE ADVISE WHETHER MY APPLICATION FOR ADMISSION FOR THE SUMMER SESSION JUNE 8 1961 HAS BEEN APPROVED: J H MEREDITH 1129 MAPLE ST APT 5-D JACKSON MISS:1155A: RECEIVED MAY 26 1961 REGISTRAR Univ. of Miss. 156 WESTERN UNION TELEGRAM EXHIBIT "R" Charge to the account of Registrar - Ext 251 To Mr. J« H. Meredith______________ ______ Mav 26 19 61 Street and No. 1129 Maple Streets Apt. 5-D Care of or Apt. No. Destination Jackson. Mississippi Letter advising action on vour application mailed yesterday.________ If not received advise me by wire and copy of letter will be forwarded immediately. .......... Robert B. E llisf Registrar________ ________