Florida v. Board of Control Brief of Respondents in Opposition

    IN THE SUPREME COURT OF THE
UNITED STATES

OCTOBER TERM, 1952

NO. 430

STATE OF FLORIDA EX REL 
VIRGIL D. HAWKINS, et a l,

Petitioners.

vs.

BOARD OF CONTROL, et al.,
Respondents,

BRIEF OF RESPONDENTS IN OPPOSITION

Richard W. Ervin 
Attorney General

Frank J. Heintz 
Assistant Attorney General

Ralph M. McLane 
Assistant Attorney General

Howard S. Bailey 
Assistant Attorney General

Counsel for Respondents



INDEX AND TABLE OF CASES 

Subject Index

Page

Opinions Below........................................... ........... .....  1

First Opinion..........................     1

Second Opinion........................................ ............. ... 2

Third Opinion........................      2

Jurisdiction ........................................ ............... ..........  2

Question Presented.............................................. ........  2

Statement of Case................ ................ ...................... 3

Argument...................         8

Conclusion ................ ............................................. . 17

CITATIONS

Cases Cited:

Fisher vs. Hurst, 333 U. S. 147, 92 L. Ed. 604,
68 S. Ct. 389................................... . 16

Gong Lum vs. Rice, 275 U. S. 78, 72 L. Ed. 172,
48 S. Ct. 91.......................................... 14

Chesapeake & Ohio Ry. vs. Kentucky,
179 U. S. 388, 45 L. Ed. 244.,...,,,................... 13

Chiles vs. Chesapeake & Ohio Ry.s
218 U. S. 71, 54 L, Ed. 936.......................... . 13

Hall vs. DeCuir, 95 U, S. 485, 24 L. Ed. 547........ 12



ii
Page

McCabe vs. A. T. & S. F. R. Co., 235 U. S. 151,
59 L. Ed. 169, 35 S. Ct. 69...................... .......  13

McKissick vs. Carmichael, 187 F. 2d 949, Cert. 
Denied, 341 U. S. 951, 95 L. Ed. 1374............. 10

McLaurin vs. Oklahoma Board of Regents,
339 U. S. 637, 94 L. Ed. 1149, 70 S. Ct. 851.... 10

Missouri ex rel Gaines vs. Canada, 305 U. S. 337,
83 L. Ed. 208, 59 S. Ct. 232.......................... . 15

Plessy vs. Ferguson, 163 U. S. 537, 41 L, Ed. 256,
16 S. Ct. 1138................... ..... ....... ........... . 12

Sipuel vs. Oklahoma Board of Regents, 332 U. S.
631, 92 L. Ed. 247, 68 S. Ct. 299...................... 9, 16

Sweatt vs. Painter, 339 U. S. 629,
94 L. Ed. 1114, 70 S. Ct. 848............... ........ 10, 16

Wilson vs. Board of Supervisors,
340 U. S. 909, 95 L. Ed. 657............ ...... ......  10

Statutes Cited:

28 USCA, 1257 (3) 2



IN THE SUPREME COURT OF THE
UNITED STATES

OCTOBER TERM, 1952

NO. 430

STATE OF FLORIDA EX REL 
VIRGIL D. HAWKINS, et al.,

P etitioners,
vs.

BOARD OF CONTROL, et al.,
Respondents.

ON PETITIONS FOR WRIT OF CERTIORARI 
TO THE SUPREME COURT OF FLORIDA

BRIEF OF RESPONDENTS IN OPPOSITION

OPINIONS BELOW
There have been three opinions of the Supreme 

Court of Florida, as follows:

F irst Opinion
The first opinion, dated August 1, 1950, involving 

petitioner Virgil D. Hawkins (R. 25) is reported in 
47 So. 2d 608; the opinion involving Rose Boyd (R. 25) is 
reported in 47 So. 2d 619; the opinion involving peti­
tioner Oliver Maxey (R. 24) is reported in 47 So. 2d 
618; the opinion involving petitioner Benjamin Finley 
(R. 25) is reported in 47 So. 2d 620,



2

'Second Opinion
The second opinion of the Supreme Court of Florida 

was entered on July 15, 1951. The opinion in the Haw­
kins Case (R. 40) is reported in 53 So. 2d 116; in the 
Boyd Case (R. 28) reported in 53 So. 2d 120; in the 
Maxey Case (R. 27) reported in 53 So. 2d 119, and in 
the Finley Case (R. 28) in 53 So. 2d 119.

Third Opinion - - .........
The third opinion of the Supreme Court of Florida 

was entered on August 1,: 1952. The opinion in the 
Hawkins Case (R. 47) is reported in 67 So. 2d 162; in 
the Boyd Case (R. 32) reported in 67 So. 2d 166; in 
the Maxey Case (R. 31) reported in 67 So. 2d 166, and 
in the Finley Case (R. 31) reported in 67 So. 2d 166.

Jurisdiction
On petitioners’ refusal to proceed further in the 

Florida court and their -demands for final judgment, 
the Supreme Court of Florida, on August 1, 1952, with 
its third opinion, denied in each case the petitioner’s 
third motion for peremptory writ of mandamus, quashed 
the alternative writ of. mandamus theretofore issued, 
and dismissed the case. (Hawkins R. 47; Boyd R, 32; 
Maxey R. 31; Finley R. 31.)

Jurisdiction of this court is attempted to be invoked 
under Title 28, Section 1257 (3), United States Code. 
The petitioners predicate their claims for relief upon 
the equal protection clause of the Fourteenth Amend­
ment to the Constitution of the United States.

Question Presented
Can the State of Florida refuse to admit 

petitioners to the University of Florida for the



a.
pursuit of graduate training in agriculture and 
chemical engineering, and professional training 
in law and pharmacy solely because of their race 
and color without violating petitioners’ rights to 
the equal protection of the laws as guaranteed 
under the Fourteenth Amendment to the Con­
stitution of the United States?

Statement of the Case
There were originally five petitioners— : Virgil Haw­

kins, Rose Boyd, Oliver Maxey, Benjamin Finley, and 
William T. Lewis. The last named appears to have 
withdrawn, and these proceedings are brought severally 
by Hawkins, Boyd, Maxey and Finley. They are com­
panion cases presenting the same issue. For that reason, 
the petitioners file only one petition, and respondents 
only one brief in opposition.

On April 4, 1949, the petitioners applied for admis­
sion to the University of Florida, which is an institution 
of higher learning maintained and operated by the 
State at Gainesville, Florida. State statutes provide 
that only students of the white race may be admitted. 
Petitioner Hawkins applied for admission to the school 
of law; petitioner Boyd to the school of pharmacy; 
petitioner Maxey applied for courses in graduate level 
chemical engineering, and petitioner Finley applied for 
courses in graduate level agriculture.

■ ■ Petitioners’ applications were referred to the re­
spondent, Board of Control, which is the agency of the 
State having complete control and management of the 
State’s institutions of higher learning, subject at all 
times to the supervision of the State Board of Education 
of Florida. At a hearing on May 13, 1949, the peti­
tioners, all of whom are members of . the . negro race,



4 .

were informed that under the laws of the State of 
Florida they could not be admitted to the University 
of Florida; that the schools and courses for which peti­
tioners had applied had prior thereto been authorized 
and ordered to be set up at the Florida Agricultural 
and Mechanical College for Negroes, a State supported 
and maintained institution of higher learning located at 
Tallahassee, Florida, but said courses had not then actu­
ally been installed, and for this reason petitioners were 
offered out-of-state scholarships equal to any courses of­
fered at any tax supported institution within the State 
of Florida (Hawkins R. 16-17; Finley R. 16-17; Boyd R. 
16-17; Maxey R. 15-16).

The petitioners refused to accept the scholarships 
offered, and filed in the Supreme Court of Florida their 
petitions for alternative writs of mandamus, (R. 1) 
and the petitions were granted (R. 4). Thereupon, the 
respondents filed motions to quash (R. 8) and these 
motions were denied by order of December 8, 1949 
(R. 8).

The summer school for which applicants applied had 
expired a long time before respondents’ answer was 
due, and there was no further application by the peti­
tioners for any subsequent term or session at the Uni­
versity of Florida until 1952.

On January 7, 1950, respondents filed their answers. 
(The record shows two separate answers. The first 
answer, appearing in the record on Page 9, was the 
answer of three members of the Board of Control whose 
terms expired in June, 1949, and those answers make 
no reply to anything which transpired subsequent to 
the end of their terms. Otherwise, the two answers 
are identical. The more complete answer was that of



5

the Board of Control, as a corporate body, and the mem­
bers of the Board whose terms continued, as well as the 
other respondents. This later answer, to which reference 
will be made, appears in the record—Hawkins, R. 15; 
Boyd R, 15; Finley R. 15; Maxey R. 14).

In their answers the respondents referred to the 
laws of the State of Florida which prohibit the admis­
sion of any other than white students at the University 
of Florida; that in the absence of actually functioning 
schools or courses requested by the applicants, out of 
state scholarships, fully equal to any schools or courses 
offered at any tax supported institution within the 
State had been offered to the applicants; that prior to 
petitioners’ applications there had been authorized and 
ordered set up the schools and courses requested by 
the applicants at the Florida Agricultural and Mechan­
ical College for Negroes at Tallahassee, another insti­
tution of higher learning of the State of Florida under 
the management of the respondents.

The answers further showed that in the meantime 
the Board of Control, as newly constituted, by resolu­
tion of December 21, 1949, had established at Florida 
Agricultural and Mechanical College for Negroes, for 
applicants and others similarly situated, who might make 
timely application, the courses and schools requested 
by applicants. (Hawkins R. 21; Boyd R. 20; Finley R. 
20; Maxey R. 20.) They further showed that by its 
resolution of December 21, 1949, applicants, upon 
making timely applications, would be admitted to their 
requested courses in said Florida Agricultural and 
Mechanical College for Negroes; and, further, that in 
the event that necessary and equal facilities, equipment 
and personnel for any of said courses were not imme­
diately available at the last named institution at the



8

time application might be made, provision had been 
made for applicants’ instruction in said courses at the 
University of Florida until such time as adequate and 
comparable facilities and personnel for courses of study 
substantially equal to those at the University of Florida 
should be functioning. at said Florida Agricultural and 
Mechanical College for Negroes (R. 20) (The Resolu­
tion is set out in full, Hawkins, R. 22; Boyd, R. 22; Finley 
R. 22; Maxey R. 21.)

On January 19, 1950, petitioners filed their motion 
for peremptory writ of mandamus, notwithstanding re­
spondents’, answer (Hawkins, R. 24; Boyd, R. 24; Finley, 
R. 24; Maxey, R. 23).

In its opinion of August 1, 1950, the Supreme Court 
of Florida held that the petitioners’ motions for peremp­
tory writ was the equivalent of a demurrer and operated 
as an admission of. facts well pleaded by respondents; 
that the respondents’ answer raised two questions: 
(1) whether out of state scholarships offered applicants 
accorded the petitioners equal protection of the law 
under the Fourteenth Amendment to the Constitution, 
and (2), if not, did the program set up by the Board 
of Control, (Resolution of December 21, 1949, Hawkins 
R. 22; Boyd R. 22; Finley R. 22; Maxey R. 21) satisfy 
the rights of the petitioners.

. The Florida court, following this court’s decisions, 
held that the out of state scholarships were not sufficient 
compliance with the Fourteenth Amendment, It further 
held, however, that the plan provided by the Board of 
Control accorded petitioners full rights under that 
amendment, and that it fully satisfied the State’s obliga­
tion to furnish petitioners with equal educational oppor­



7

tunities (Hawkins R. at pages 32-38; Boyd R. at 26; 
Finley R. at 26; Maxey R. at 25)

Notwithstanding its conclusion, the Florida court 
retained jurisdiction of the cases until it be shown by 
either party that the Board of Control had, or had not, 
failed to furnish petitioners, after due application, such 
opportunities and facilities for pursuing their desired 
courses of study as are substantially equal to those 
afforded to the students enrolled in like courses at the 
University of Florida.

Following that opinion, which was dated August 1, 
1950, the petitioners permitted the case to remain dor­
mant until May 16, 1951, when they filed another 
motion for peremptory wrrit of mandamus (Hawkins 
R. 39; Boyd R. 27; Finley R. 27; Maxey R. 25). On 
June 15, 1951, the Florida court found that petitioners 
had made no proof or showing of re-application, or as 
to whether or not there had been established at the 
Florida Agricultural and Mechanical College for Negroes 
the courses desired, as required by the court’s original 
opinion. The court denied the petition for peremptory 
writ, but again retained jurisdiction in order that either 
party might make proof that equal opportunities and 
facilities had, or had not, been provided for the peti­
tioners (Hawkins R. 40; Boyd R. 28; Finley R. 28; Maxey 
R. 27).

Petition for writ of certiorari was filed in this court, 
but it was denied (November 13, 1951) because the 
Florida court’s judgment of June 15, 1951, was not a
final judgment, ............. ............  U. S. ......... ................ ,
96 L. ed. 65.

Again, the cases remained dormant until on May 28,



s
1952, when petitioners filed another motion for peremp­
tory writ in which they declined to proceed further, 
standing upon the pleadings as filed and demanding 
final judgment (Hawkins R. 45; Boyd R. 31; Finley 
R. 30; Maxey R. 29). The Florida court again found 
that petitioners had failed to submit any proof as to the 
equality or inequality of the opportunities provided 
for them at the Florida Agricultural and Mechanical 
College for Negroes, or that facilities there provided did 
not afford to them the guarantees to which they were 
entitled under the Constitution. The court further 
found that schools and courses demanded by the peti­
tioners were functioning and in operation at the Florida 
Agricultural and Mechanical College for Negroes, and 
that the courses were similar in content and quality 
to those offered at the University of Florida; that it 
has all of the required facilities, faculty, students and 
equipment. The court further found that petitioners 
had persistently refused to apply for admission to the 
Florida Agricultural and Mechanical College for Ne­
groes. On petitioners’ demand for final judgment the 
court denied the motions for peremptory writ, quashed 
the alternative writs theretofore issued, and dismissed 
the causes. (Hawkins R. 47; Boyd R. 32; Finley R. 31; 
Maxey R. 31.)

Argument

In their petition, under the heading “Opinions Be­
low,” the petitioners greet the court with the state­
ment that these cases have now been pending for more 
than two years. They close their “Statement of the 
Case” with the averment that two years after the initial 
decision the court below, on August 1, 1952, entered 
its final judgment dismissing the cases. The pointed 
manner in which the statements are made seem to imply



that the petitioners have had to wait a long time for a 
final judgment. Surely it was not intended to mislead 
this court into believing that there is similarity to the 
case of Sipuel vs. Oklahoma Board of Regents, 332 U. S. 
631, 92 L. ed. 247, 68 S. Ct. 299, in which the circum­
stances persuaded this court to summarily order the 
admission of the applicant because of what the court 
there considered inexcusable delay of the Oklahoma 
authorities. The. fact of the matter is, as shown by the 
record, that the petitioners could have had final judg­
ment immediately after the first opinion of the court on 
August 1, 1950, had they asked for it. Or they could 
have had a hearing on the equality of facilities immedi­
ately after the opinion of August 1, 1950; the Supreme 
Court of Florida retained jurisdiction of the case for 
that purpose. The record shows that notwithstanding 
the retention of jurisdiction by the Supreme Court of 
Florida to hear proof on the question of equality or lack 
of equality of educational facilities provided for them, 
petitioners at no time offered any proof whatever or 
made any move in that direction, and that at no time 
asked for final judgment until just prior to the third 
opinion, which was entered on August 1, 1952. The 
record shows that whatever delay there may have been 
in reaching a final judgment or to obtain any other 
appropriate relief was due to the failure of the peti­
tioners to move or ask for it.

Petitioners contend that the “separate but equal” 
decisions of this court are error.

This court has repeatedly answered the petitioners’ 
question and re-affirmed the validity of that principle. 
The answer to petitioners question is that the State 
may refuse to admit petitioners to the University "of 
Florida because of Their race or color without violating

9



10

the Constitution of the United States by providing for 
them separate but equal facilities in a comparable tax 
supported institution within the State as promptly as 
it provides them for white students in institutions estab­
lished for the latter.

Petitioners state in their argument that “whether 
the courses which petitioners seek are now being offered 
on a segregated basis is, we submit, beside the point. 
Any distinctions based upon race or color at the profes­
sional and graduate school level of state universities vio­
late the equal protection clause of the Fourteenth 
Amendment.” They cite in support of that statement 
Sweatt v. Painter, 339 U. S. 629, 94 L. ed. 1114; Me- 
Laurin v. Oklahoma State Regents, 339 U. S. 637, 94 L. 
ed 1149; Wilson v. Board of Supervisors, 340 U. S. 909, 
95 L. ed 657; McKissick v. Carmichael, 187 F, 2d 949 
(C. A. 4th 1951); cert den. 341 U. S. 951, 95 L. ed 1374.

Those cases did not abolish the “separate hut equal” 
principle. In fact, the court found in those cases that 
the schools provided for the negro students were not 
equal to those provided for white students. In so de­
termining, the court actually followed that doctrine. In 
each of those cases there was proof and evidence sub­
mitted as to the white and negro schools. The petitioners 
here very carefully avoided any proof or evidence as to 
the courses at the University of Florida on the one hand, 
and the courses at the Florida Agricultural and Mechani­
cal College for Negroes on the other, presumably to 
submit the question of segregation in schools unencum­
bered by any question of fact as to whether or riot the 
separate facilities were equal. The length of time during 
which a law school or any other course has been in 
existence at any institution does not determine the ques­



tion. It may be one factor in appraising a school, but 
it is not at all controlling.

Petitioners refer to the proposed admission to the 
University of Florida under certain conditions on a 
segregated basis. The Board of Control’s resolution 
provides that upon the failure to supply equal facilities 
at the Florida Agricultural and Mechanical College for 
Negroes, the students shall be admitted to the University 
of Florida and the institution “shall at all times observe 
all of the requirements of the laws of the State of 
Florida in the matter of segregation of the races, etc.” 
There is no showing that there would be segregation of 
any negro admitted to the University of Florida under 
the Board’s resolution. Petitioners do not point out what 
may be the laws of the State of Florida applicable to 
such students who may be admitted to the University. 
The reason they do not mention it is that there are no 
segregation laws of Florida applicable to any negro stu­
dents who may be admitted to the University of Florida 
under the Board of Control’s resolution or otherwise.

The court has said that the importance of a ques­
tion may affect the granting or denial of a petition for 
certiorari. The rights of citizens or groups of citizens 
are always important, but when any of such rights have 
been settled by repeated decisions of this court and 
over a long period of time, such as the “separate but 
equal” principle, the question ceases to have that im­
portance which will require the attention of the court. 
The “separate but equal” principle is quite clear, and 
there is nothing unsettled about it. No reason has been 
presented to require a reconsideration of the long estab­
lished doctrine. True, the question is persistent, and 
by what appears to be a calculated and continuous flow 
of cases, perhaps in the hope of wearing down the court.

11



It is admitted that petitioners would be within their 
rights in using that strategy, but it does not require 
appeasement.

By a line of decisions of this court dating back to 
the case of Hall v. DeCuir, 95 U. S. 485, 24 L. ed. 547, 
which was decided in 1887, this court has announced, 
approved and confirmed the principle of “separate but 
equal” facilities. The Hall v. DeCuir case involved the 
question of the right of negroes to remain in cabins 
on steamboats reserved for whites and this court said 
that a statute requiring those engaged in transportation 
of passengers to separate white and colored passengers 
in Louisiana was constitutional. In a concurring opinion, 
one of the justices pointed out that “substantial equal- 
ity of right is the law of the state and the United States, 
but equality does not mean identity. . . .” He referred 
also to separation of the races in the schools, and said:

“Equality of rights does not involve the neces­
sity of educating white and colored persons in 
the same school anymore than it does of educat­
ing children of both sexes in the same school, or 
different grades of scholars must be kept in the 
same school,”

Plessy v. Ferguson, 163 U. S. 537, 41 L. ed. 256, 16 
S. Ct. 1138, was decided by this court in 1896. It in­
volved a Louisiana statute which required separation of 
races by those furnishing transportation for passengers. 
Plessy, a negro, refused to occupy a place set aside for 
negroes. This court said:

“Laws permitting or requiring separation of 
the races do not necessarily imply the inferiority 
of any race to the other and such laws have been 
generally recognized as valid exercises of the 
legislative police power,”

12'



The court gave as the most common instance of such 
laws, the establishment of separate schools for white 
and colored children. The court pointed out that this 
separation of the races in schools does not affect the 
political equality of the negro.

The court in that case further pointed out that in 
determining the question of reasonableness the State is 
at liberty to act as “the established usages, customs and 
traditions of the people” and with the view of “the pro­
motion of their comfort and the preservation of peace 
and good order”. The statute was upheld as valid.

Chesapeake & Ohio Ry. v. Kentucky, 179 U, S. 388, 
45 L. ed 244, was decided in 1900. This' case considered 
the validity of a Kentucky statute requiring the railroad 
to provide separate accommodations for white and col­
ored passengers. This court said there was no doubt 
about the constitutionality of the statute.

Chiles v. Chesapeake & Ohio Ry., 218 U. S. 71, 54 
L ed. 936, was decided in 1910. Here again this court 
upheld the Kentucky statute requiring separation of the 
races. In that case the court quoted with approval the 
language of Plessy v. Ferguson, supra, which upheld the 
legislative right to consider and follow “established 
usages, customs and traditions of the people and the 
promotion of their comfort and preservation of peace 
and good order.”

McCabe v. A. T. & S. F. Ry. Co., 235 U. S. 151, 59 L. 
ed. 169, 35 S. Ct. 69, was decided in 1914. This case in­
volved the statute requiring separation of white and 
colored citizens on trains and in waiting rooms. This 
court approved the Circuit Court’s . holding •



“That it had been decided by this court, so 
that the question could no longer be considered 
an open one, that it was not an infraction of the 
14th amendment for a State to require separate, 
but equal, accommodations for the tv/o races.”

Gong Lum v. Rice, 275 U. S. 78, 72 L. ed. 172, 48 S. 
Ct. 91, was decided in 1927. It involved the statute re­
quiring the separation of white and colored students in 
schools. The statute was held valid. Mr. Chief Justice 
Taft said:

“The right and power of the state to regulate 
the method of providing for the education of its 
youth at public expense is clear. . . .

“The question here is whether a Chinese citi­
zen of the United States is denied equal protec­
tion of the laws when he is classed among the 
colored races and furnished facilities for educa­
tion equal to that offered to all, whether white, 
brown, yellow, or black. Were this a new ques­
tion, it would call for very full argument and 
consideration but we think that is the same ques­
tion which has been many times decided to be 
within the constitutional power of the state legis­
lature to settle without intervention of the federal 
courts under the Federal Constitution.”

and further said:

“ ‘The most common instance of this is con­
nected with the establishment of separate schools 
for white and colored children, which has been 
held to be a valid exercise of the legislative power 
even by courts of States where the political rights 
of the colored race have been longest and most 
earnestly enforced.’ ”



He added:

15;

“The decision is within the discretion of the 
state in regulating its public schools and does not 
conflict with the Fourteenth Amendment. The 
judgment of the Supreme Court of Mississippi is 
affirmed.”

Missouri ex rel Gaines v. Canada, 305 U. S. 337, 83 
L. ed. 208, 59 S. Ct. 232, was decided in 1938. In that, 
case Mr. Chief Justice Hughes said:

“In answering petitioner’s contention that this 
discrimination constituted a denial of his consti­
tutional right, the state court has fully recognized 
the obligation of the State to provide negroes 
with advantages for higher education substanti­
ally equal to the advantages afforded to white stu­
dents. The State has sought to fulfill that obli­
gation by furnishing equal facilities in separate 
schools, a method the validity of which has been 
sustained, by our decisions. 305 U. S. at 344, 83 
L. ed. at 211” (Citing cases)

“Here, petitioner’s right was a personal one. 
It was as an individual that he was entitled to the 
equal protection of the laws, and the State was 
bound to furnish him within its borders facilities 
for legal education substantially equal to those 
which the State there afforded for persons of the 
white race, whether or not other Negroes sought 
the same opportunity. 305 U. S. at 351, 83 L. ed. 
at 214.”

“The admissibility of laws separating the races 
in the enjoyment of privileges afforded by the 
State rests wholly upon the equality of the privi­
leges which the laws give to the separated groups



within the State . . . .  305 U. S. at 349, 83 L. ed. 
at 213”

“We are of the opinion . . . .  that petitioner 
was entitled to be admitted to the law school of 
the State University in the absence of other and 
proper provision for his legal training within the 
State. 305 U. S. at 352, 83 L. ed. at 215.”

Again, in 1948, in the cases of Sipuel v. Board of 
Regents, 332 U. S. 631, 92 L. ed. 247, 68 S. Ct. 299, and 
Fisher v. Hurst, 333 U. S. 147, 92 L. ed. 604, 68 S. Ct. 
389, this court recognized the doctrine of “separate but 
equal” facilities and later in the case of Sweatt v. 
Painter, 339 U. S. 629, 94 L. ed. 1114, 70 S. Ct. 848, 
recognized the same doctrine.

It will be observed that in many cases and over a 
long period of time, this court has consistently found 
that separate facilities do not deprive a member of the 
negro race of equal protection of the laws or any other 
of his constitutional rights, provided the facilities are 
substantially equal to those supplied to members of the 
white race.

The doctrine contains the two elements, separation 
with equality.

To provide equal facilities in separate schools, in 
some cases it is easy and simple, in others, more diffi­
cult—-but in every case it is possible.

The matter of equality of facilities is as feasible and 
practicable now as it was when Chief Justices Waite, 
Taft, Hughes, and their illustrious associates and prede­
cessors, wrote those decisions from as far back as 1887,

16



1?

The other element of the principle—separation of 
the races in the enjoyment of the facilities, likewise, 
is the same now as then.

Separateness is no more separate now than it was 
in Hall vs. DeCuir, Plessy vs. Ferguson, Gong Lum vs. 
Rice, Missouri ex rel Gaines vs. Canada, and the other 
cases, supra.

Conclusion

The same reasons which supported the many deci­
sions of this court upholding the “separate but equal” 
principle are as valid today as when announced in the 
cited decisions. The combination of equality with 
separation which this court’s long line of decisions ap­
proved means exactly the same thing now as then,— 
which is to say that the decisions are as right today as 
when written. This court will not overturn a principle 
so fixed and fundamental as the “separate but equal” 
doctrine in the absence of an overpowering reason. Pe­
titioners have shown no acceptable reason for the revo­
lutionary prayer of their petitions.

Citing the decisions of this court, the Supreme Court 
of Florida in its first opinion (Hawkins R. 33), said: 
“No court in the land has ever required of a sovereign 
state any more than is encompassed within the plan 
proposed by the Board of Control in its answer. Every 
individual political right and privilege guaranteed the 
citizen by the provisions of the Federal Constitution is 
maintained under the program, while at the same time 
the right of the State to adopt such method as it finds 
best designed to afford substantially equal educational



18

opportunities to Florida citizens of different race groups 
has been preserved.”

The petition should be denied.

Respectfully submitted,

Richard W. Ervin 
Attorney General

F rank J. Heintz 
Assistant Attorney General

Ralph M. McLane 
Assistant Attorney General

Howard S. Bailey 
Assistant Attorney General

Counsel for Respondents