Lucy v. Board of Trustees of the University of Alabama Brief of Appellants

    Intfrd States (Emtrt ni Appeals
For the Fifth Circuit

No. 14,857

AUTHERINE J. LUCY and POLLY ANNE MYERS,
Appellants,

versus

BOARD OF TRUSTEES OF THE UNIVERSITY 
OF ALABAMA et al.,

Appellees.

A ppeal, eeom the United States D istrict Court for the 
Northern District of A labama.

BRIEF OF APPELLANTS

A rthur D. Shores,
1630 4th Avenue, North 

Birmingham, Alabama.

T hurgood Marshall,
Constance B aker Motley, 
R obert L. Carter,

107 West 43rd Street,
New York 36, New York,

Attorneys for Appellants.

Supreme Printing Co., Inc., 114 W orth Street, N. Y. 13, BEekman 3 - 2320



PAGE

Statement of the C a se ..................... ....... .. ' . . . . . . . . . . .

Statement of the Facts ................................. ..............
Questions Presented .........................................................
Specification of Errors ............................................. .. • • •

Argument ............................................................................
I—A suit against the Board of Trustees of the 

University of Alabama for declaratory judg­
ment with respect to alleged infringement of 
constitutional rights and for injunction against 
their violation is not a suit against the State of 
Alabama .................................................................
A. No immunity from unconstitutional action ..

B. Criterion is relief sought...............................
II—A suit against the President and Dean of Admis- 

missions of the University of Alabama for a 
declaratory judgment with respect to alleged 
infringement, of constitutional rights and for 
injunction against their violation is not a suit 
against the State of A labam a.............................

Conclusion .............................................................. ..

Table of Cases

Alabama Girls Industrial School v. Reynolds, 143
Ala. 579 (1904) .........................................................

Alston v. School Board of City of Norfolk, 112 F. 2d 
992 (C. A. 4, 1940) ..................................................... 10,

Barlowe v. Employers Insurance Company of Ala­
bama, 237 Ala. 665, 188 So. 896 (1939) .................. 13,

1
2
5
6
7

7
8
9

16
18

11

18

14



11

PAGE

Burkley v. United States, 185 P. 2d 267 (C. A. 7,
1950)..............................................................................  11

Cook v. Davis, 178 F. 2d 595 (C. A. 5, 1950) ..........8, 9,10
12,18

Cox v. Board of Trustees of the University of Ala­
bama, 161 Ala. 639, 49 So. 814 (1901 ).................. 13

Davis v. Cook, 55 F. Supp. 1004, 1007-1008 (1944) . .  8
Glass v. Prudential Insurance Company, 264 Ala.

579, 22 So. 2d 13 (1945) ..................................... 10,13,14
Hopkins v. Clemson Agricultural College, 221 U. S.

636, 55 L. ed. 890 (1911) .........................................8,9,18
Iowa-Des Moines Bank v. Bennett, 284 U. S. 239, 76 

L. ed. 265 (1931) ......................................................... 8,17
Kansas City By. Company v. Daniel, 180 F. 2d 910

(C. A. 5, 1950) ............................................................ 8,9,18
Larson v. Domestic and Foreign Commerce Corp.,

337 U. S. 682, 93 L. ed. 1628 (1949) ..................... 8,9,10
McKissick v. Carmichael, 187 F. 2d 949 (C. A. 4,

1951) ......................................................................  18
McLaurin v. Oklahoma State Regents, 339 U. S. 637,

94 L. ed. 1149 (1950) ................................................. 17
Morris v. Williams, 149 F. 2d 703 (C. A. 8, 1945) . . . .  18
New York Technical Institute of Md. v. Lindbergh,

87, F. Supp 308 (1949) ............................................. 9
Sipuel v. Board of Regents, 332 U. S. 631, 92 L. ed.

247 (1948) ...................................................................   18
Sloan Shipyard Corp. v. United States Shipping 

Board Emergency Freight Corp., 258 U. S. 549,
66 L. ed. 762 (1922) ...............................................  9,18

State v. Clements, 217 Ala. 685, 117 So. 296 .............. 13
Sweat! v. Painter, 339 U. S. 629, 94 L. ed. 1114 (1950) 17



MnxUb Court of Appralfi
For the Fifth Circuit

No. 14,857

---------------------- o-----------------------

A utherine J. L ucy and P olly A nne Meyebs,
Appellants,

v.

Board of T bustees of the University of A labama, H ill 
F erguson, Chairman of the Board, J ohn M. Galalee, 
L ee B idgood and W illiam F. A dams,

Appellees.
-------------------- o--------------------

BRIEF OF APPELLANTS

Statement of the Case

This is an appeal from an order of the United States 
District Court, Northern District of Alabama, entered 
October 9, 1953, granting the motions to dismiss of the 
appellees, defendants below, and dismissing the complaint 
as to each of the appellees in this cause (R. 40-45).

The court below, in its opinion, ruled that this action 
against the Board of Trustees of the University of Alabama 
in its official capacity is a prohibited suit against the State 
of Alabama (R. 43).

The court also ruled that the complaint does not show 
any present actual controversy as to appellees Galalee 
and Bidgood and that as to these parties, the complaint, 
being against them in their official capacities, may not be 
maintained (R. 43-44).



2

The court, in its opinion, ruled that as to defendant- 
appellee Adams, the complaint, being against him for his 
official acts rather than his acts in his individual capacity, 
may not be maintained (R. 43-44).

Statement of the Facts

On July 3, 1953, appellants filed their complaint in the 
court below against the appellees on behalf of themselves 
and all other Negroes similarly situated with respect to 
the matters here involved, alleging in part as follows:

Plaintiffs on September 9,1952 applied for admis­
sion to the University of Alabama (R. 4).

Plaintiffs complied with all the rules and regula­
tions entitling them to admission (R. 4).

That a room assignment was made by the Dean 
of Admissions as shown by Plaintiffs’ Exhibits A  
and B attached to and made a part of the complaint 
(R. 4).

That plaintiffs received letters of welcome from 
the President of the University, as shown by Plain­
tiffs’ Exhibits C and D attached to and made a part 
of the complaint (R. 4).

Plaintiffs appeared in person in the office of the 
Dean of Admissions, William F. Adams, on Sep­
tember 22, 1952 and after a conference with him he 
informed plaintiffs that they would not be admitted 
as students to the University (R. 4).

Plaintiffs applied to the President of the Uni­
versity for admission and that the President of the 
University refused the plaintiffs’ admission on ac­
count of plaintiffs’ race and color (R. 4-5).

Subsequent to the refusal of admission by the 
President, plaintiffs appealed to the Board of 
Trustees of the University of Alabama to change



3

its policy, rules and regulations so as to admit plain­
tiffs and other Negroes similarly situated (R. 5).

The Board of Trustees considered plaintiffs’ 
requests and applications for admission to the Uni­
versity of Alabama and after said consideration 
plaintiffs were notified by the Board that they were 
denied admission to the University of Alabama and 
that denial was based solely on plaintiffs’ race and 
color (R. 5).

The defendants, who exercise overall authority 
with respect to admission of students to the 
University, have established and are maintaining a 
policy, custom, usage and practice of denying to 
qualified Negro applicants the right to be admitted 
to the Schools of Journalism and Library Science of 
the University of Alabama solely because of race 
and color, and have continued the policy of refusing 
to admit qualified Negro applicants into the said 
schools, while at the same time admitting white appli­
cants with equal or less qualifications than Negro 
applicants solely on account of race and color (R. 5).

All of the defendants are sued in their official 
capacities (R. 3).

The complaint prays a declaratory judgment that the 
policy, custom, usage and practice of defendants in deny­
ing plaintiffs, on account of race and color, and others 
similarly situated, the right to enroll, enter and pursue 
courses of study at the University of Alabama is a denial 
of the equal protection of the laws guaranteed by the Four­
teenth Amendment to the Constitution of the United States 
and is, therefore, unconstitutional and void (R. 6).

The complaint prays the issuance of a permanent injunc­
tion restraining defendants from denying plaintiffs and 
others similarly situated the right to enroll and pursue



4

courses of study in journalism, library science and other 
subjects at the University of Alabama, solely because of 
their race and color (R. 7).

The defendant Board of Trustees of the University of 
Alabama moved to dismiss the complaint on the ground, 
among others, that the Board is a public corporation, an 
instrumentality and agency of the State of Alabama, and is 
not subject to suit under Article 1, Section 14 of the Con­
stitution of the State of Alabama and that this action is 
in reality a suit against the State of Alabama (R. 19).

The defendants John M. Galalee, Lee Bidgood, and 
William F. Adams moved to dismiss the complaint on the 
ground, among others, that it affirmatively appears that 
this action is being brought against them in their official 
capacities and that in such capacities they come under the 
authority, supervision, control, and act pursuant to the 
orders of the Board of Trustees of the University of Ala­
bama, which is a public corporation, an instrumentality and 
agency of the State of Alabama, which is not subject to 
suit under Article 1, Section 14 of the Constitution of the 
State of Alabama, and that therefore this action is in reality 
against said Board of Trustees of the University of Ala­
bama (R. 22, 24, 27).

These defendants also moved to dismiss the complaint 
on the ground that it fails to show a case of actual contro­
versy between each of them and the plaintiffs (R. 22, 24, 27).

The court below filed its opinion and order granting 
the motions to dismiss on October 9, 1953 (R. 40-45). It 
dismissed the complaint as to the Board of Trustees of the 
University of Alabama on the ground that a suit against 
it in its official corporate capacity is a suit against the 
state (R. 43).

The court ruled that the complaint does not show any 
present actual controversy as to the defendants Galalee 
and Bidgood (R. 43).



5

It also ruled that as to those defendants and as to de­
fendant Adams, the complaint does not purport to charge 
them personally for any wrongful act—that it purports to 
charge them only with acts officially committed—and that 
it reveals that the acts that they are alleged to have com­
mitted were all committed under authority, supervision, 
control of, and pursuant to the orders and policies estab­
lished by the defendant Board of Trustees of the University 
of Alabama (R. 43).

The court ruled that as to any individual defendant, 
otherwise properly in the case, it should not be difficult to 
correct the infirmity referred to by an appropriate amend­
ment averring that, in refusing plaintiffs’ admission to 
the University, such officer was in fact acting personally, 
although purporting* to act under color of office (R. 44).

The court dismissed the complaint as drafted as to each 
of the defendant officials and in its order allowed plaintiffs 
15 days within which to amend their complaint (R. 45).

From the order dismissing the complaint and directing 
plaintiffs to amend their complaint, plaintiffs appeal (R. 
46).

Questions Presented 

I
Whether a suit against the Board of Trustees of the 

University of Alabama is a suit against the State of Ala­
bama where such suit is for a declaratory judgment that 
the policy and practice of the Board in denying plaintiffs, 
qualified Negro applicants, admission to the University of 
Alabama solely because of their race or color, is in viola­
tion of the equal protection clause of the 14th Amendment 
to the Federal Constitution, and seeks an injunction re­
straining the Board from denying plaintiffs, solely because



6

of race and color, the right to enroll and pursue courses of 
study at the University of Alabama?

11
Whether a suit against the President and Dean of Ad­

missions of the University of Alabama for a declaratory 
judgment -that the policy and practice of these officials, in 
their official capacities, of denying the plaintiffs the right 
to enroll, enter, and pursue courses of study at the Uni­
versity of Alabama solely because of the plaintiffs’ race 
and color is in violation of the equal protection clause of 
the 14th Amendment to the Federal Constitution, and seek­
ing an injunction restraining these officials from denying 
plaintiffs, solely because of their race and color, the right 
to enroll and pursue courses of study at the University of 
Alabama, is a suit which may not be maintained against 
these officials in their official capacities because a suit 
against the state?

Specification of Errors 

I
The court below erred in dismissing the complaint on 

the ground that the instant suit against the Board of Trus­
tees of the University of Alabama in its official capacity is 
a suit against the State of Alabama.

11
The court below erred in dismissing the complaint on 

the ground that a suit against the President and Dean 
of Admissions of the University of Alabama may not be 
maintained against them in their official capacities because 
a suit against the state and may be maintained against 
them only in their individual capacities.



7

ARGUMENT

I

A  suit against the Board of Trustees of the Univer­
sity of Alabama for declaratory judgment with respect 
to alleged infringement of constitutional rights and for 
injunction against their violation is not a suit against 
the State of Alabama.

The complaint in this action alleges that appellants ap­
pealed to the Board of Trustees of the University of Ala­
bama to change its policy, rules and regulations so as to 
admit appellants and other Negroes similarly situated. 
This appeal was made to the Board after appellants had 
been denied admission to the University by the Dean of 
Admissions, William F. Adams, one of the appellees herein, 
and after the appellants had been denied admission, solely 
because of race and color, by the President of the Univer­
sity. The complaint alleges that the Board considered 
appellants’ request to change its policy, rules and regula­
tions and that after considering same, the Board notified 
appellants that they were denied admission to the Univer­
sity solely because of race and color (R. 4-5).

The complaint prays a declaratory judgment that the 
policy, custom, usage and practice of the Board in denying 
appellants and others similarly situated, the right to enroll, 
enter and pursue courses of study at the University, solely 
because of race and color, is a denial of the equal protection 
of the laws guaranteed by the 14th Amendment to the Con­
stitution of the United States and is, therefore, unconsti­
tutional and void (R. 6). The complaint prays a permanent 
injunction restraining the Board from denying appellants, 
solely because of race and color, the right to enroll and 
pursue courses of study in journalism, library science and 
other subjects at the University.

The complaint in this case thus alleges infringement of 
constitutional rights, seeks a declaratory judgment against



8

the state agency which the complaint alleges has infringed 
those rights, and seeks an injunction against the offending 
agency. The question determinative of this appeal is 
whether such a suit is in fact and effect one against the 
State, thus permitting the offending agency to invoke the 
sovereign’s immunity from suit.

A. No immunity from unconstitutional action
Where the suit is one against a state agency or official 

alleging infringement of rights protected by the federal 
Constitution, the state agency or official charged with viola­
tion of constitutional rights may not invoke the sovereign’s 
immunity from suit to defeat such action. See Larson v. 
Domestic and Foreign Commerce Corporation, 337 U. S. 
682, 690-691, 93 L. ed. 1628, 1636 (1949); Hopkins v. Clem- 
son Agricultural College, 221 U. S. 636, 645, 55 L. ed. 890, 
895 (1911); Davis v. Co oh, 55 Fed. Supp. 1004, 1007-1008 
(1944); Cook v. Davis, 178 F. 2d 595, 599 (C. A. 5, 1950); 
Kansas City Ry. Company v. Daniel, 180 F. 2d 910, 914 
(C. A. 5, 1950).

Cases in which state officials have sought in vain to 
invoke the sovereign’s immunity from suit in the face of 
alleged infringement of constitutional rights are legion. 
See Larson v. Foreign and Domestic Corporation, supra, 
the dissenting opinion of Mr. Justice Frankfurter pp. 710, 
712-713, 731, 1647-1648, 1658, where these cases are col­
lected. But the truly basic question here involved is the 
power of the federal courts to protect rights secured by 
the federal constitution. Thus the state’s inherent or com­
mon law immunity from suit and cases involving the ques­
tion of what 'constitutes a suit against the state within the 
meaning of the 11th Amendment to the federal constitution, 
have no bearing. Iowa-Des Moines Bank v. Bennett, 284 
U. S. 239, 245-246, 76 L. ed. 265 (1931).



9

B. Criterion Is Relief Sought
Nevertheless, in any case, specific relief against officers 

or agencies of the sovereign may be obtained where such 
relief is not in fact or in effect relief against the sovereign. 
See Larson v. Domestic and Foreign Commerce Corpora­
tion, supra; Sloan Shipyard Corporation v. United States 
Shipping Board Emergency Freight Corporation, 258 U. S. 
549, 66 L. ed. 762 (1922); Hopkins v. Clemson Agricultural 
College, supra; Cook y. Davis, supra; Kansas City By. Com­
pany v. Daniel, supra. Because where the relief sought is 
not relief against the sovereign, the suit is not one which 
must fail as against the state. This is the criterion estab­
lished in all cases where a governmental official seeks to 
invoke the sovereign’s immunity from suit. Larson v. For­
eign and Domestic Commerce Corp., supra.

If the relief sought here were relief which would affect 
an interest in property belonging to the State of Alabama, 
then clearly the relief sought is relief against the sovereign. 
Larson v. Domestic aoid Foreign Commerce Corp., supra. 
I f  the relief sought would result in compelling the State 
of Alabama to exercise its sovereign powers of taxation or 
legislation, or require it to pay out money in the public 
treasury, then clearly the relief sought would be against 
the State of Alabama in its sovereign capacity. Hopkins 
v. Clemson Agricultural College, supra, at 642, 894 and 
New York Technical Institute of Maryland v. Lindbergh, 87 
F. Supp. 308, 313 (D. Md. 1949).

In the instant suit against the Board of Trustees of 
the University of Alabama nothing is sought to be recovered 
against the State of Alabama. No property interest of the 
State of Alabama will be affected by the granting of relief 
in this case. Neither will the granting of the relief prayed 
compel the state to exercise any of its sovereign powers.



10

This suit against the Board of Trustees of the Uni­
versity of Alabama is, therefore, not a suit against the 
State of Alabama in name or in effect. It is a suit 
against an agency of the State of Alabama which has 
a separate corporate identity.1 The Board of Trustees 
of the University of Alabama did not act in the name of 
or for the State of Alabama in denying appellants admis­
sion to the University of Alabama. It acted in its own 
corporate name, according to the allegations of the com­
plaint, and in its own corporate right as the agency of 
the state which has been granted the power to admit 
students to the University of Alabama. Like any other 
officer or agency of the state which infringes upon rights 
secured to an individual by the Constitution of the United 
States, specific relief may be granted against the Board 
of Trustees of the University of Alabama in the form of 
a declaratory judgment, see, Glass v. Prudential In­
surance Co., 264 Ala. 579, 584, 22 So. 2d 13 (1945), or in 
the form of an injunction. See, Larson v. Domestic and 
Foreign Commerce Corporation, supra, 690, 1636; see 
Cook v. Davis, supra; Alston v. School Board of City of 
Norfolk, 112 F. 2d 992 (CA 4, 1940).

The fact that the complaint alleges that the Board is 
sued in its official capacity is not determinative of the 
issue whether the instant suit against it is in fact and 
effect a suit against the State of Alabama. Larson v. 
Foreign and Domestic Corp., supra, at 687,1634. Therefore, 
the fact that the complaint alleges that the suit is against 
the Board in its official capacity is not a ground for dis­
missal of the complaint.

The court below, in determining that the suit against 
the Board of Trustees of the University of Alabama in 
its official capacity is a suit against the State of Alabama, 
failed to determine whether the relief sought was in fact 
and effect relief against the State of Alabama. In this

1 Alabama Code 1940, Title 52, Section 486.



11

respect, the court below clearly committed error. The 
court below looked only at the fact that the Board is sued 
in its official capacity. This, as demonstrated, is not the 
test and this Court must, upon this appeal, examine the 
whole record to determine whether the appellants’ suit is 
in fact one against the State of Alabama. BurJcley v. United 
States, 185 F. 2d 267, 270-271 (C. A. 7, 1950).

A  determination as to whether the relief sought is in 
fact relief against the sovereign was the criterion used by) 
the United States Supreme Court in the Larson case. In 
that case the court found that the property sought to be 
obtained by the Respondent was property belonging to the 
United States and that Respondent sought by injunction 
to enjoin the United States from selling or delivering 
this property to anyone other than the Respondent. The 
court, finding that the relief sought would affect an interest 
in property belonging to the sovereign, ruled that the suit 
must fail as one against the United States. That case is, 
therefore, clearly distinguishable from the instant case 
where no property belonging to the sovereign is sought to 
be obtained, but where constitutional rights are sought to 
be secured.

The Supreme Court of Alabama, in determining whether 
a suit is one against the State in violation of Article I, 
Section 14 of the Constitution of that State, has used the 
same criterion. In Alabama Girls Industrial School v. 
Reynolds, 143 Ala. 579, 583-586 (1904), the court, in decid­
ing that a suit against the school was in fact against the 
state said:

“ I f  the suit instituted against it is practically 
and really against the state—if the judgment and 
decree obtained against it must be satisfied, if at all, 
out of the property held by it, and this property' 
belongs to the state, though the title is eo nomine 
in the complainant as an agent of the state,—  then



12

clearly to permit an action or suit against it would 
be doing by indirection that which cannot be done 
directly.”

In other words, if a suit against a state agency such as a 
state school or university is one in which the judgment or 
decree obtained against it must be satisfied out of the 
property held by it and belonging to the state, or if some 
right or interest of the state would be affected by the judg­
ment or decree, then clearly the suit against the state school 
or college cannot be maintained. But if, as in the instant 
case, no property right or interest of the state will be 
affected by the decree, the suit, even under this decision 
of the Supreme Court of Alabama, may be maintained.

This Court, in Cook v. Davis, supra, 599 (1949), 
decided the instant question in a situation similar to the 
case at bar. In Cook v. Davis, the plaintiff Negro school 
teacher sought to have public funds which had been duly 
appropriated rightly paid out by the administrative officials 
sued in that case. The administrative officials had, in 
alleged violation of constitutional rights, improperly paid 
out the funds appropriated by discriminating against plain­
tiff in the payment of his salary by paying him less salary 
than was paid to white teachers with the same qualifica­
tions, experience, etc., solely because of the plaintiff’s race 
and color. In that case the defendant state officials sought 
to defend on the ground that the suit was one against 
the state forbidden by the 11th Amendment to the Federal 
Constitution. This Court ruled that the suit was not a 
suit against the state for the reason that “ Nothing is sought 
to be recovered against the state, nor is any right of the 
State sought to be impaired. The validity of its statutes 
is not even impugned. It seeks only to have public 
funds which have been duly appropriated rightly paid out 
by administrative officials according to law. The Eleventh 
Amendment as interpreted in Hans v. Louisiana, 134 U. S. 
1, 10 S. Ct. 504, 33 L. ed. 842, does not apply.”



13

In the instant case, nothing is sought to be recovered 
against the State of Alabama, nor is any right of the State 
sought to be impaired. The validity of the statutes of 
the State of Alabama is not even impugned. The com­
plaint seeks only to have the controlling public agency 
and the administrative officials of the University of 
Alabama admit the plaintiffs to the University in accord­
ance with their duty to admit all qualified students. The 
suit seeks in effect to compel the performance of a duty 
which is purely ministerial. In State v. Clements, 217 Ala. 
685,117 So. 296, the Supreme Court of the State of Alabama 
ruled that the immunity of the state from suit under Article 
I, Section 14 of the State’s Constitution does not exempt 
state officers from the influence of judicial process to compel 
the performance of a ministerial act.

The court below in its opinion cites three Alabama cases 
as supporting its conclusion that the instant case is a suit 
against the State of Alabama when brought against the 
Board of Trustees in its official capacity and the individual 
defendants in their official capacities; Cox v. Board of 
Trustees of the University of Alabama, 161 Ala. 639, 49 
So. 814 (1901); Barlowe V. Employers Insurance Company 
of Alabama, 237 Ala. 665, 188 So. 896 (1939); Glass v. 
Prudential Insurance Company, 264 Ala. 579, 22 So. 2d 13 
(1945).

In the Cox case, the Board of Trustees of the University 
of Alabama brought suit against an individual to recover 
possession of certain lands allegedly owned by the Uni­
versity. The question decided by the court was whether 
the Board of Trustees of the University of Alabama was 
the state for the purpose of applying to it a twenty-year 
statute of limitations which applied to the state with respect 
to such actions. There was no question of constitutional 
rights involved and no necessity for the court to determine 
whether a suit against the Board of Trustees of the Uni­
versity of Alabama was, because of the relief sought, a suit



14

against the state. The language quoted by the court below 
from that opinion has reference to the issue decided by the 
court.

In Barlowe v. Employers Insurance Company of Ala~ 
bama, supra, no constitutional infringement of the plaintiffs 
rights was alleged in the complaint. As a matter of fact, 
no wrong or tort by the defendants in their official or indi­
vidual capacity was alleged. The court, therefore, found 
no equity in the case against the officials either in their 
official or individual capacities. The court held that the 
plaintiff had a. clear remedy at law in a suit against the 
insurance company as third party beneficiary of the con­
tract between the insurance company and the state officials 
and that, therefore, the action for declaratory judgment 
in that case could not be maintained in view of the avail­
ability of another adequate remedy at law. The court did 
not decide that if that case had been brought against the 
Alabama State Highway Commission alleging infringement 
of constitutional rights, by it or the members of the Com­
mission in their official capacities, and seeking a declaratory 
judgment and injunction, that such a case would be in effect 
a suit against the State of Alabama.

In Glass v. Prudential Insurance Company, supra, the 
court specifically construed a statute in such a manner as 
to avoid a decision on whether Article I, Section 14 of the 
Constitution of Alabama would be violated by a suit against 
state officials in their official capacities. The court, desir­
ing to uphold the statute to permit a suit against the 
State Superintendent of Insurance to recover a tax paid 
under protest, construed the statute as permitting a suit 
against the state official in his individual capacity. The 
court thereby avoided the issue presented by this case.

The Supreme Court of Alabama, however, in that case 
specifically recognized that the weight of authority is that 
a suit against state officials in their official capacity is not a



15

suit against a state forbidden by the Federal Constitution 
where the suit is to enjoin state officers from enforcing 
an unconstitutional law.

It also recognized that “ it is the nature of the suit or 
relief demanded which the courts consider in determining 
whether a suit against a state officer is in fact one against 
the state within the rule of immunity referred to, and it 
is not the character of the office or the person against whom 
a suit is brought.”  The court said that illustrative of 
this is the Alabama case of Curry v. Woodstock Slag Gory., 
242 Ala. 379, 6 So. 2d 479, where a suit for declaratory 
judgment was allowed against the state collector of internal 
revenue. Quoting from the Curry case the court said:

“ When it is only sought to construe the law and 
direct the parties, whether individuals or State offi­
cers, what it requires of them under a given state 
of facts, to that extent it does not violate Section 
Fourteen, Constitution”  (at p. 584).

In the instant case, appellants, in their complaint, 
pray a declaratory judgment that the policy, custom, usage 
and practice of the appellees in denying these appellants, 
and others similarly situated, the right to enroll, enter and 
pursue courses of study at the University of Alabama, on 
account of their race and color, is a denial of the equal 
protection of the laws guaranteed by the Fourteenth 
Amendment to the Constitution of the United States. They 
also seek a permanent injunction restraining appellees from 
denying appellants the right to enroll and pursue courses 
of study at the University of Alabama when the denial is 
based solely on race and color. Such relief seeks to have 
the law construed, that is, the requirements of the equal 
protection clause of the Fourteenth Amendment. It seeks 
to have the parties directed as state agents and officers. It 
seeks to have determined what the law requires of these



16

state agents and officials in their official capacities. It 
also seeks to enjoin appellees from unconstitutional dis­
crimination. To this extent appellants maintain that a 
suit against the Board of Trustees in its official capacity 
does not violate Section Id, Article I of the Constitution 
of the State of Alabama.

II

A  suit against the President and Dean of Admis­
sions of the University of Alabama for a declaratory 
judgment with respect to alleged infringement of con­
stitutional rights and for injunction against their vio­
lation is not a suit against the State of Alabama.

The court below, in its opinion, ruled that since the 
complaint against the individual appellees reveals that 
the acts which they are alleged to have committed were all 
committed under authority, supervision, control of and 
pursuant to the orders and policies established by the Board 
of Trustees of the University of Alabama and since the 
complaint does not purport to charge these officers per­
sonally on account of wrongful individual acts, the com­
plaint as presently drawn must be dismissed as to each of 
these officials (B. 43-45).

The complaint alleges that the appellants were refused 
admission by Appellee Adams when they presented them­
selves in person in his office as Dean of Admissions of the 
University of Alabama (B. 4). The complaint alleges that 
the President of the University denied appellants admission 
to the University, appellants having appealed to the Presi­
dent, and that his denial was based solely on appellants’ 
race and color (B. 4-5). A  motion was filed by appellants 
in the court below to substitute the present President of



17

the University as a defendant in this action on the ground 
that there is a substantial need for continuing this action 
against the present incumbent, in that he has adopted the 
policy and practice sought to be enjoined (E. 30).

The complaint against these officials thus alleges that, 
acting in their official capacities they have denied appel­
lants ’ constitutional rights. In refusing appellants ’ admis­
sion, these officials did not act as private citizens. They 
acted as officials of the University of Alabama and, as the 
complaint alleges, they acted under the authority, super­
vision, control and pursuant to the orders and policies 
established by the Board of Trustees of the University of 
Alabama (E. 3).

Since the Board of Trustees of the University of 
Alabama may not invoke the sovereign’s immunity from 
suit in this instance, it follows that its agents may not 
invoke such immunity, especially since the relief sought 
against these officials is identical with the relief sought 
against the Board and, as in the case of the Board, the 
complaint against these officials alleges that they too in­
fringe constitutional rights.

I f  suing these officials in their official capacities was 
the sole test for determining whether the instant suit is a 
suit against the State of Alabama, then clearly the court 
below was correct in dismissing the complaint as to each 
of these officials and allowing the appellants time within 
which to amend their complaint. But since this is not the 
criterion, and since the action of these appellees must be 
regarded as state action if the constitutional proscription 
is to be invoked, Iowa-Des Moines Bank v. Bennett, 284 
U. S. 239, 245, 76 L. ed. 265 (1931), it cannot be grounds for 
dismissal that the complaint alleges that they are sued in 
their official capacities.

In similar cases in which state officials sought to invoke 
the sovereign’s immunity in suit alleging infringement of 
constitutional rights, the state officials were sued in their 
official capacities. Sweatt v. Painter, 339 U. S. 629, 94 L. ed. 
1114 (1950); McLaurin v. Oklahoma State Regents, 339



18

IT. S. 637, 94 L. ed. 1149 (1950); Sipuel v. Board of Regents, 
332 U. S. 631, 92 L. ed. 247 (1948); Sloan Shipyard Corp. 
v. United States Shipping Board Emergency Freight Corp., 
258 U. S. 549, 66 L. ed. 762 (1922); Hopkins v. Clemson 
Agricultural College, 221 U. S. 636, 55 L. ed. 890 (1911); 
McKissick v. Carmichael, 187 F. 2d 949 (C.A. 4, 1951); 
Cook v. Davis, 178 F. 2d 595 (C.A. 1950); Kansas City 
Ry. Co. v. Daniel, 180 F. 2d 910 (C.A. 5, 1950); Morris v. 
Williams, 149 F. 2d 703 (C.A. 8, 1945); Alston v. School 
Board of City of Norfolk, 122 F. 2d 992 (C.A. 4,1940).

CONCLUSION

For the foregoing reasons appellants respectfully 
urge that the order of the court below be reversed and 
the case remanded for further proceedings.

Respectfully submitted,

A rthur D. Shores,
1630 4th Avenue, North 

Birmingham, Alabama.

T hurgood Marshall,
Constance B aker Motley,
R obert L. Carter,

107 West 43rd Street,
New York 36, New York,

Attorneys for Appellants.