McCorvey v. Lucy Brief for Appellees

    I n  th e

Mwittb Btdim ©cm*! of Appeals
F oe t h e  F if t h  C ircuit

No. 20,898

Gessner T. M cCobvey, et al.,
Appellants,

A u th erin e  J. L u cy , et al.,
Appellees.

a p p e a l  f r o m  t h e  u n i t e d  s t a t e s  d i s t r i c t  c o u r t

FOR T H E  N O R T H E R N  DISTRICT OF A LAB A M A

BRIEF FOR APPELLEES

C harles M organ, J r . 
5411 Sanger Avenue 
Apartment 252 
Alexandria, Virginia

Attorney for Appellees 
Marvin P. Carroll and 
Dave M. McGlathery

J ack  Greenberg 
C onstance B aker  M otley 
L eroy D . Clark  
G eorge B . S m it h  
F ran k  H . H effron

10 Columbus Circle 
New York, N. Y., 10019

F red D . G ray
34 North Perry Street 
Montgomery, Alabama

A rth u r  D . S hores
A. G. Gaston Building 
Birmingham, Alabama

Attorneys for Appellees 
Vivian J. Malone, et al.



I N D E X

PAGE

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

A rgum ent

The Possibility of Violence Does Not Justify Sus­
pension of the Constitutional Eight to Attend a 
State University on a Nondiseriminatory Basis .... 4

C o n c l u s io n .........................................................................................  7

T able op Ca se s :

Aaron v. Cooper, 257 P. 2d 33 (8th Cir. 1958), aff’d
358 U. S. 1 ......................................................................  5

Armstrong v. Board of Education of City of Birming­
ham, Ala., 323 F. 2d 333 (5th Cir. 1963) ...................... 5

Brown v. Board of Education, 347 U. S. 483 ..................  5
Brown v. Board of Education, 349 U. S. 294 ..................  5
Buchanan v. Warley, 245 U. S. 60 ..........   5
Bush v. Orleans Parish School Board, 188 F. Supp. 916 

(E. D. La. 1960), motion for stay denied, 364 XL S.
500, aff’d 365 U. S. 569 ................................................  5

Cooper v. Aaron, 358 U. S. 1 ............... .........................4, 5, 6

Garner v. Louisiana, 368 U. S. 157.................................  5

Hawkins v. Board of Control, 350 U. S. 413..................  5

McLaurin v. Oklahoma State Eegents, 339 U. S. 637 .... 5



11

PAGE

Nesmith v. Alford, 318 F. 2d 110 (5th Cir, 1963) ........... 5

Strutwear Knitting Co. v. Olson, 13 F. Snpp. 384 (D.
Minn. 1963)..................................................................... 5

Sweatt v. Painter, 339 U. S. 629 ....................-............ 5

Taylor v. Louisiana, 370 U. S. 154.................................  5

Watson v. City of Memphis, 373 U. S. 526 ...................... 5
Wright v. Georgia, 373 U. S. 284 ..................................... 5



'MnxUb Staton ( to r t  of Kppmh
F oe th e  F ie th  C ircuit  

■No. 20,898

I k  th e

Gessher T. M cC orvey, et al.,
Appellants,

— v . —

A u t h e b ik e  J. L u cy , et al.,
Appellees.

A P PE A L  EBOM  T H E  U K IT E D  STATES DISTRICT COURT 
FOR T H E  K O B T H E R K  DISTRICT OF A L AB A M A

BRIEF FOR APPELLEES

Statement of the Case

This is an appeal from an order of the District Court 
for the Northern District of Alabama, entered May 21, 1963, 
refusing to modify an injunction entered by that court on 
July 1, 1955, which enjoined the rejection of Negro appli­
cants to the University of Alabama on the basis of race. 
The order of May 21, 1963, overruled a motion of the 
Board of Trustees of the University for suspension of the 
injunction so that the attendance of Negroes whose appli­
cations to the University had been accepted in compliance 
with the injunction could be delayed until “ the present state 
of unrest in race relations in the State of Alabama has 
materially improved.”

The present suit was commenced April 15, 1963, when 
complaint was filed on behalf of Vivian J. Malone and two



2

others against Hubert E. Mate, Dean of Admissions of the 
University of Alabama. It was alleged that the plaintiffs 
were qualified Negroes who had been denied admission to 
the University solely on the basis of race. Injunctive relief 
was sought (R. 5-13).

On April 15, 1963, the plaintiffs filed a motion for issu­
ance of an order to show cause, a judgment of contempt, 
or a preliminary injunction (R. 13). Here it was alleged 
that on July 1, 1955, in a class action the district court had 
issued an injunction against Mate’s predecessor enjoining 
exclusion of Negroes from the University on the basis of 
race. Autherine J. Lucy, et al. v. William F. Adams, No. 652 
(R. 17, 79). (The injunction was suspended by the district 
court on September 6, 1955, but reinstated by the Supreme 
Court on October 10, 1955 (350 U. S. 3).) Plaintiffs alleged 
that defendant Mate had knowingly violated the injunction 
by refusing to accept the plaintiffs’ applications, and re­
quested that he be held in contempt or that a preliminary 
injunction issue for the plaintiffs (R. 14-16).

On April 25, 1963, plaintiffs moved (R. 24-27) for con­
solidation of the case instituted by them (Malone v. Mate, 
No. 63-178) with the case of Lucy v. Adams (No. 652), and 
on May 16, 1963, the court ordered the two actions con­
solidated for all purposes with all papers filed in the 
former case considered as filed in the latter (R. 28-30).

On May 8, 1963, another complaint (R. 31-52) was filed 
in the district court on behalf of Marvin P. Carroll and 
Dave M. McGlathery, alleging that they were qualified 
Negroes who had been denied admission to the Graduate 
School and the Huntsville Center o f ' the University of 
Alabama on the basis of race (No. 63-227). On May 21, 
1963, the court consolidated the case with Lucy v. Adams 
and dismissed all defendants except Hubert E. Mate (R. 59- 
61) .



3

On May 3, 1963, the defendant Mate filed a motion for 
construction of the present efficacy of the judgment ren­
dered on July 1, 1955 (R. 88). On May 16, 1963, the court 
ruled that the injunction “ is efficacious and binding not 
only upon those specifically referred to therein but also 
upon the petitioner as Dean of Admissions of the Univer­
sity of Alabama, Successor in office-to William F. Adams, 
and everyone now officially connected with the University 
who has knowledge of such judgment” (E. 92, 97).

On May 20, 1963, Gessner T. MeCorvey and other mem­
bers of the Board of Trustees of the University moved to 
intervene (R. 98). They also moved to modify the in­
junction of July 1, 1955 and the court’s construction of the 
injunction on May 16, 1963 (R. 101). The Trustees (inter- 
venors-appellants) alleged that in compliance with previous 
rulings they had instructed defendant Mate to accept the 
applications of Vivian Malone and Dave McGlathery for 
the Summer Session. However, because of alleged racial 
disorders and the unavailability of sufficient law enforce­
ment personnel to prevent violence at Tuscaloosa and 
Huntsville, the Trustees requested that the injunction be 
modified by suspending its operation “until such time as, 
in the judgment of this Court, the present state of unrest 
in race relations in the State of Alabama has materially 
improved” (R. 103).

On May 21, 1963, the district court granted the motion 
to intervene and overruled the motion to modify and sus­
pend the injunction (R. 59, 61).1

1 Subsequently, Vivian Malone and Jimmie Hood were admitted 
to the University of Alabama at Tuscaloosa. Their entrance, at 
first blocked physically by the Governor of Alabama, was effected 
by the presence of federal marshals and troops. The Governor’s 
obstruction had been enjoined by the district court. Miss Malone 
is still attending the University. Jimmie Hood withdrew during 
the Summer Session.



4

ARGUMENT

The Possibility of Violence Does Not Justify Suspen­
sion of the Constitutional Right to Attend a State Uni­
versity on a Nondiscriminatory Basis.

This is a frivolous appeal. The district court was clearly 
correct in refusing to modify or suspend the injunction. The 
right of the plaintiffs to attend the University of Alabama 
was not questioned; the University’s duty to admit them 
was acknowledged. The only reason urged upon the court 
for suspending the injunction was an allegation of racial 
disturbances in various parts of the state.

Even assuming the correctness of the allegation, the 
district court ruled properly. The possibility of violence 
does not justify the suspension of constitutional rights. 
In Cooper v. Aaron, 358 U. S. 1, actual violence requiring 
the presence of federal troops was held not to justify the 
suspension of a plan for public secondary school desegre­
gation. The Supreme Court held:

The constitutional rights of respondents are not to be 
sacrificed or yielded to the violence and disorder which 
have followed upon the actions of the Governor and 
Legislature. As this Court said some 41 years ago in 
a unanimous opinion in a case involving another as­
pect of racial segregation: “It is urged that this pro­
posed segregation will promote the public peace by 
preventing race conflicts. Desirable as this is, and 
important as is the preservation of the public peace, 
this aim cannot be accomplished by laws, or ordinances 
which deny rights created or protected by the Federal

Mr. McGlathery’s admission to the Huntsville Center was ef­
fected with no disturbance.



5

Constitution.” [Citing Buchanan v. Warley, 245 U. S. 
60.] Thus law and order are not here to be preserved 
by depriving the Negro children of their constitutional 
rights. 358 U. S. at 16.

The district court’s reliance on Cooper v. Aaron was 
squarely on the mark.

Just recently, the Supreme Court reaffirmed this settled 
doctrine, declaring that “the possibility of disorder by 
others cannot justify exclusion of persons from a place if 
they otherwise have a constitutional right (founded upon 
the Equal Protection Clause) to be present.” 2 Wright- v. 
Georgia, 373 U. S. 284, 293. See also Watson v. City of 
Memphis, 373 U. S. 526, 534 (“constitutional rights may not 
be denied simply because of hostility to their assertion or 
exercise.” ) ; Taylor v. Louisiana, 370 TJ. S. 154; Gamer v. 
Louisiana, 368 U. S. 157; Armstrong v. Board of Education 
of City of Birmingham, Ala., 323 F. 2d 333, 361 (5th Cir. 
1963); Nesmith v. Alford, 318 F. 2d 110,121 (5th Cir. 1963); 
Aaron v. Cooper, 257 F. 2d 33, 38-39 (8th Cir. 1958), aff’d 
358 U. S. 1; Bush v. Orleans Parish School Board, 188 
F. Supp. 916 (E. D. La. 1960), motion for stay denied, 
364 U. S. 500, aff’d, 365 IT. S. 569; Strutwear Knitting Co. 
v. Olson, 13 F. Supp. 384, 391-92 (D. Minn. 1936).

It might also be pointed out that the allegations of racial 
tension and violence were unsupported by testimony or 
other evidence, except for appellant’s asserted (Brief of 
Appellants, p. 17) request that the court take judicial

2 Judicial recognition of the substantive right to attend_ state 
universities free from racial discrimination antedates the ruling of 
Brown v. Board of Edtication, 347 U. S. 483, see e.g., Sweatt v. 
Painter, 339 U. S. 629; McLaurin v. Oklahoma State Regents, 339 
U. S. 637, and the considerations justifying delay in complete im­
plementation of the right in public elementary and high schools, 
Brown v. Board of Education, 349 U. S. 294, do not apply to 
universities, Hawkins v. Board of Control, 3o0 U. S. 413.



6

notice of them.3 A district court certainly is not justified 
in delaying implementation of constitutional rights solely 
on the basis of its judicial knowledge that isolated incidents 
had occurred in various parts of the state. Cooper v. 
Aaron, supra.

Finally, it is submitted that the issue presented by ap­
pellants is now moot. The plaintiffs have been admitted to 
the University, and the occasion of their entrance has long 
since passed. Consistent with the district court’s refusal 
to sacrifice constitutional rights to lawless opposition, the 
resources of the state and federal governments were used 
to protect constitutional rights and preserve order. Nothing 
could be accomplished at this time by a reversal of the dis­
trict court’s decision.

3 Appellants assert that the court did take judicial notice of 
conditions in the state at the time. The propriety of this is not 
questioned here.



7

CONCLUSION

For the foregoing reasons, the decision of the district 
court in refusing to modify the injunction should be 
affirmed.

Respectfully submitted,

C hables M organ, J b . 
5411 Sanger Avenue 
Apartment 252 
Alexandria, Virginia

Attorney for Appellees 
Marvin P. Carroll and 
Dave M. McGlathery

J ack  Greenberg 
C onstance B aker  M otley 
L eroy D . Clark  
G eorge B . S m it h  
F ran k  H . H effron

10 Columbus Circle 
New York, N. Y., 10019

F red D. Gray
34 North Perry Street 
Montgomery, Alabama

A rth u r  I). S hores
A. G. Gaston Building 
Birmingham, Alabama

Attorneys for Appellees 
Vivian J. Malone, et al.



8

Certificate of Service

T h is  is to certify  that on the 21st day of January, 1964, 
I served copies of the foregoing Brief for Appellees upon 
Frontis H. Moore, Esq., Andrew J. Thomas, Esq., and 
Samuel H. Burr, Esq., 1130 Bank for Savings Building, 
Birmingham, Alabama, Attorneys for Appellants, by mail­
ing copies thereof to them at the above address, via United 
States mail, air mail, postage prepaid.

This 21st day of January, 1964.

Attorney for Appellees