McCorvey v. Lucy Brief for Appellees
Public Court Documents
January 21, 1964

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Brief Collection, LDF Court Filings. McCorvey v. Lucy Brief for Appellees, 1964. 9c706778-bc9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/cf75a52a-74ce-4571-83d0-1f85b6170150/mccorvey-v-lucy-brief-for-appellees. Accessed May 17, 2025.
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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