Florida v. Board of Control Transcript of Record

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May 25, 1949 - May 12, 1952

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    TRANSCRIPT OF RECORD

Supreme Court of the United States

OCTOBER TERM, 1951

No.

THE STATE OF FLORIDA, EX EEL. VIRGIL D. 
HAWKINS, PETITIONER,

vs.

THE BOARD OF CONTROL OF FLORIDA, A BODY 
CORPORATE UNDER THE LAWS OF THE STATE 
OF FLORIDA, ET AL.

P E T IT IO N  PO E  A W R IT  OP CERTIO RA RI TO T H E  S U P R E M E  COU RT 
OP T H E  STATE OP FLORID A

FILED



SUPREME COURT OF THE UNITED STATES

THE STATE OF FLORIDA, EX EEL. VIRGIL D. 
HAWKINS, PETITIONER,

vs.
THE BOARD OF CONTROL OF FLORIDA, A BODY 

CORPORATE UNDER THE LAWS OF THE STATE

P E T IT IO N  EO S A W R IT  OE CERTIO RA RI TO T H E  S U P R E M E  COURT

OCTOBER TERM, 1951

No.

HAWKINS, PETITIONER,
vs.

OF FLORIDA, ET AL.

OE T H E  STATE OE FLORIDA

INDEX
Original P rint

Record from the Supreme Court of the State of Florida. . 1 1
Petition for alternative writ of mandamus....................  1 1
Order granting petition for alternative writ of manda­

mus ............................................................................  ^ 4
Alternative writ of mandamus.....................................  11 5
Motion to quash writ of mandamus.............................  17 8
Order denying motion to quash alternative writ of

mandamus .................................................................  19 !!
Answer of J. Thomas Gurney, et al............................... 22 9
Answer of Board of Control, et al.................................  32 15

Exhibit—Resolution of Board of Control.............  42 22
Motion for peremptory writ of mandamus................... 46 24
Opinion, Sebring, J .......................................................... 48 25
Motion for peremptory writ of mandamus..................  65 39
Opinion on motion for peremptory writ of mandamus,

Sebring, C. J. ..............................................................  68 40
Motion directing certification of record.......................  76 44
Clerk’s certificate.................... (omitted in printing) . . 76

J u d d  & D e t w e il e ® ( I n o . ) ,  P r in t e r s , W a s h in g t o n , D . C., A u g . 31, 1951. 

—6883



1

[fol. 1]
IN THE SUPREME COURT OP THE STATE OF

FLORIDA

T h e  S tate of F lorida, ex rel., V ir g il  D. H a w k in s , Plaintiff,
vs.

T h e  B oard of C ontrol of F lorida, a body corporate under 
the laws of the State of Florida, J. Thomas Gurney, N. 
B. Jordan, Thomas W. Bryant, J. Hinson Markham, and 
Hollis Rinehart, as members of the Board of Control of 
State of Florida; J. Hillis Miller, as President of the 
University of Florida, and R. S. Johnson, as Registrar 
of the University of Florida, Respondents.

P e t it io n  for A ltern a tiv e  W rit  of M andam us—Filed May
25, 1949 .

To the Honorable Judges of the above Styled Court:
Your petitioner, Virgil D. Hawkins, respectfully presents 

unto the Court:
That your petitioner is a citizen and a resident of Alachua 

County, Florida; that the respondent, the Board of Control 
of Florida, is a body corporate created by the laws of the 
State of Florida and its principal office and place of business 
is in Tallahassee, Leon County, Florida; that the respon­
dent, J. Thomas Gurney, is a citizen and resident of Orange 
County, Florida, and is the duly appointed, qualified and 
acting member and chairman of said Board of Control; 
that the respondent, N. B. Jordan, is a citizen and resident 
of Gadsden County, Florida, and is the duly appointed, 
qualified and acting member of said Board of Control; that 
the respondent, Thomas W. Bryant, is a citizen and resident 
[fol. 2] of Polk County, Florida, and is a duly appointed, 
qualified and acting member of said Board of Control; that 
the respondent, J. Hinson Markham, is a citizen and resident 
of Duval County, Florida, and is a duly appointed, qualified 
and acting member of said Board of Control; that the 
respondent, Hollis Rinehart, is a citizen and resident of 
Dade County, Florida, and is a duly appointed, qualified 
and acting member of said Board of Control; that the re­
spondent, J. Hillis Miller, is a citizen and resident of Alachua

1—6883



2

County, Florida, and is the duly appointed and qualified 
president of said University of Florida; that the respon­
dent, ft. S. Johnson, is a citizen and resident of Alachua 
County, Florida, and is the duly appointed and qualified 
registrar of said University of Florida.

2

That the petitioner desires to study law in the College 
of Law of the University of Florida which is supported and 
maintained by the taxpayers of the State of Florida for 
the purpose of preparing himself to practice law in the State 
of Florida and for public service therein and has been 
arbitrarily refused admission.

3
That the petitioner has an AB degree from Lincoln 

University, Pennsylvania.
4

That on or about the 4th day of April, A. D., 1949 your 
petitioner, duly applied for admission to the first year class 
of the College of Law of the University of Florida, for 
attendance at the coming summer session of said school. 
He then possessed, and still possesses, all the scholastic, 
moral and other lawful qualifications prescribed by the 
Constitution and Statutes of the State of Florida, by the 
Board of Control of the State of Florida and by all the 
duly authorized officers and agents of said Board of Control 
and the University of Florida and the College of Law for 
admission in the first year class of the College of Law of 
said University. He was then, and is still, ready and willing 
[fol. 3] to pay all uniform fees and charges and to conform 
to all lawful uniform rules and regulations established by 
lawful authority for admission to said class.

5
That contrary to the usual and customary procedure, 

the respondent, R. S. Johnson, forwarded petitioner’s appli­
cation to the respondent, the Board of Control and there­
after, to-wit: the 13th day of May, A. D., 1949, your peti­
tioner, by and through his attorney, did appear before said 
Board of Control at a regular meeting of said Board of 
Control in Tallahassee, Leon County, Florida, for a hearing



3

upon Ms application for admission. That at said hearing 
the respondents, J. Thomas Gurney, N. B. Joi'dan, Thomas 
W, Bryant, J. Hinson Markham and Hollis Rinehart, did 
deny the application of your petitioner and did refuse to 
grant him admission into the first year class of the College 
of Law at the University of Florida, and did then and there 
announce that said application was denied solely because 
of certain provisions of the Constitution and Statutes of the 
State of Florida which deny the right of your petitioner 
admission to the said University solely because of your 
petitioner’s race and color, thus denying unto your peti­
tioner the equal protection of laws solely on the ground of 
his race and color, contrary to the Constitution of the 
United States.

6
That the College of Law of the University of Florida is 

the only law school in the State of Florida supported and 
maintained by the taxpayers of the State of Florida. That 
the College of Law specializes in law and procedure which 
regulates the Courts of Justice and the government of the 
State of Florida and there is no other law school maintained 
by the public funds of the State of Florida where your 
petitioner can study Florida law and procedure to the same 
extent and on an equal level of scholarship and intensity 
as in the College of law of the University of Florida. That 
[fol. 4] the arbitrary and illegal refusal of the respondents, 
the members of the Board of Control to admit your peti­
tioner to the first year of law school solely on the grounds 
of race and color has caused irreparably injury and will 
place him at a distinct disadvantage at the Bar of Florida 
and in the public service of the aforesaid State with persons 
who have had the benefit of the unique preparation in 
Florida law and procedure given to white students in the 
law school of the University of Florida.

7

That the respondents, J. Hillis Miller, as president of the 
University of Florida and R. S. Johnson, as registrar, have 
refused to admit your petitioner to the University of 
Florida, solely because of race and color, thus denying 
your petitioner equal protection of the law, while at the 
same time admitting white applicants with less qualifica­
tions than your petitioner.



4

The petitioner further shows that he has no speedy, 
adequate remedy at law and that unless a Writ of Man­
damus is issued he will be denied the right and privilege of 
pursuing the course of instruction in the school of law as 
hereinabove set out.

Your petitioner further shows unto this Court that the 
question involved in this proceeding is a special and peculiar 
question of law, an early decision of which, will avoid 
litigation in other cases which will be controlled by force 
of the decision of this case, that the respondents herein are 
a State Board, State offices, and other agencies, authorized 
to represent the public generally and that this is a case in 
which this Honorable Court should exercise its original 
jurisdiction.
[fol. 5] Wherefore, your petitioner prays the issuance of 
an alternative writ commanding the respondents herein; 
within the time set by this Court, to admit your petitioner 
into the College of Law of said University of Florida or 
to show to this Court — for their refusal so to do.

(S) V. D. Hawkins, Petitioner. (S) Alex Akerman, 
Jr., Attorney for Petitioner, 401 First National 
Bank Building, Orlando, Florida.

[fol. 6] Duly sworn to by Virgil D. Hawkins. Jurat 
omitted in printing.
[fols. 7-8] Duly sworn to by Alex Akerman, Jr. Jurat 
omitted in printing.

8

[fols. 9-10] In t h e  S u pr e m e  C ourt op F lorida, J anuary  
T er m , A. D. 1949, F riday, J u n e  10, 1949

[Title omitted]

O rder Gr a n tin g  P e t it io n  for  A ltern a tiv e  W r it  of M a n ­
damus— J u n e  10, 1949

Upon consideration of the petition of relator for an Al­
ternative Writ of Mandamus in this cause, it is ordered that 
such writ issue returnable in thirty days from the date of 
said writ,



5

[fol. 11] In t h e  S u p r e m e  C ourt op F lorida 

[Title omitted]
A ltern a tiv e  W r it  op M andam us—June 10, 1949

Whereas, upon the sworn petition filed herein by the 
relator Virgil D. Hawkins it has been made to appear:

1
That your petitioner is a citizen and a resident of Alachua 

County, Florida; that the respondent, the Board of Control 
of Florida, is a body corporate created by the laws of the 
State of Florida and its principal office and place of busi­
ness is in Tallahassee, Leon County, Florida; that the 
respondent, J. Thomas Gurney, is a citizen and resident of 
Orange County, Florida, and is the duly appointed, qualified 
and acting member and chairman of said Board of Control; 
that the respondent, N. B. Jordan, is a citizen and resident 
[fol. 12] of Gadsden County, Florida, and is the duly ap­
pointed, qualified and acting member of said Board of 
Control; that the respondent, Thomas W. Bryant, is a citi­
zen and resident of Polk County, Florida, and is a duly 
appointed, qualified and acting member of said Board of 
Control; that the respondent, J. ITinson Markham, is a 
citizen and resident of Duval County, Florida, and is a 
duly appointed, qualified and acting member of said Board 
of Control; that the respondent, Hollis Rinehart, is a citi­
zen and resident of Dade County, Florida, and is a duly 
appointed, qualified and acting member of said Board of 
Control; that the respondent, J. Hillis Miller, is a citizen 
and resident of Alachua County, Florida, and is the duly 
appointed and qualified president of said University of 
Florida; that the respondent, R. S. Johnson, is a citizen and 
resident of Alachua County, Florida, and is the duly ap­
pointed and qualified registrar of said University of 
Florida.

2
That the petitioner desires to study law in the College of 

Law of the University of Florida which is supported and 
maint-ed by the taxpayers of the State of Florida for the 
purpose of preparing himself to practice law in the State 
of Florida and for public service therein and has been 
arbitrarily refused admission.



6

3
That the petitioner has an AB degree from Lincoln Uni­

versity, Pennsylvania.
4

That on or about the 4th day of April, A. D., 1949 your 
petitioner, duly applied for admission to the first year 
class of the College of Law of the University of Florida, 
for attendance at the coming summer session of said school. 
He then possessed, and still possesses, all the scholastic, 
moral and other lawful qualifications prescribed by the 
Constitution and Statutes of the State of Florida, by the 
Board of Control of the State of Florida and by all the duly 
authorized officers and agents of said Board of Control 
and the University of Florida and the College of Law for 
admission in the first year class of the College of Law of 
said University. He was then, and is still, ready and willing 
[fol. 13] to pay all uniform fees and charges and to conform 
to all lawful uniform rules and regulations established by 
lawful authority for admission to said class.

5
That contrary to the usual and customary procedure, the 

respondent, R. S. Johnson, forwarded petitioner’s appli­
cation to the respondent, the Board of Control and there­
after, to-wit: the 13th day of May, A. D., 1949, your peti­
tioner, by and through his attorney, did appear before said 
Board of Control at a regular meeting of said Board of 
Control in Tallahassee, Leon County, Florida, for a hearing 
upon his application for admission. That at said hearing 
the respondents, J. Thomas Gurney, N. B. Jordan, Thomas 
W. Bryant, J. Hinson Markham and Hollis Rinehart, did 
deny the application of your petitioner and did refuse to 
grant him admission into the first year class of the College 
of Law at the University of Florida, and did then and there 
announce that said application was denied solely because 
of certain provisions of the Constitution and Statutes of 
the State of Florida which deny the right of your petitioner 
admission to the said University solely because of your 
petitioner’s race and color, thus denying unto your peti­
tioner the equal protection of laws solely on the ground of 
his race and color, contrary to the Constitution of the 
United States.



7

That the College of Law of the University of Florida is 
the only law school in the State of Florida supported and 
maintained by the taxpayers of the State of Florida. That 
the College of Law specializes in law and procedure which 
regulates the Courts of Justice and the government of the 
State of Florida and there is no other law school maintained 
by the public funds of the State of Florida where your peti­
tioner can study Florida law and procedure to the same 
extent and on an equal level of scholarship and intensity 
as in the College of law of the University of Florida. That 
the arbitrary and illegal refusal of the respondents, the 
members of the Board of Control to admit your petitioner 
to the first year of law school solely on the grounds of race 
[fol. 14] and color has caused irreparable injury and will 
place him at a distinct disadvantage at the Bar of Florida 
and in the public service of the aforesaid State with persons 
who have had the benefit of the unique preparation in 
Florida law and procedure given to white students in the 
law school of the University of Florida.

7
That the respondents, J. Hillis Miller, as president of the 

University of Florida and R. S. Johnson, as registrar, have 
refused to admit your petitioner to the University of 
Florida, solely because of race and color, thus denying your 
petitioner equal protection of the lawq while at the same 
time admitting white applicants with less qualifications 
than your petitioner.

8
The petitioner further shows that he has no speedy, ade­

quate remedy at law and that unless a Writ of Mandamus 
is issued he will be denied the right and privilege of pur­
suing the course of instruction in the school of law as here­
inabove set out.

Your petitioner further shows unto this Court that the 
question involved in this proceeding is a special and pecu­
liar question of law, an early decision of which, will avoid 
litigation in other cases which will be controlled by force 
of the decision of this case, that the respondents herein are 
a State Board, State offices, and other agencies, authorized 
to represent the public generally and that this is a case in

6*

2—6883



8

which this Honorable Court should exercise its original 
jurisdiction.

Now, therefore, these are to command you the said Board 
of Control of Florida, a body corporate under the laws of 
the State of Florida, J. Thomas Gurney, N. B. Jordan, 
Thomas W. Bryant, J. Hinson Markham, and Hollis Bine- 
hart, as members of the Board of Control of the State of 
Florida; J. Hillis Miller, as President of the University of 
Florida, and B. S. Johnson, as Begistrar of the University 
of Florida to admit Virgil D. Hawkins to the College of 
Law of the said University of Florida as a student therein, 
or in the alternative, that you in your respective capacities 
in which you are herein joined, do show cause, if any you 
have, before this court on the 11th day of July, 1949 why 
[fols. 15-16] peremptory writ of mandamus should not issue 
herein, and have you then and there this writ.

Witness the Honorable Alto Adams, Chief Justice of the 
Supreme Court of Florida and the seal of said court at 
Tallahassee, the Capital, this 10th day of June, 1949.

------------, Clerk Supreme Court of Florida.

[fo ls . 17-18] I n  t h e  S u p r e m e  C ourt oe t h e  S tate of
F lorida

[Title omitted]

M otion  to Qu a sh — Filed July 11, 1949

Come now the respondents in the above styled cause, 
by their attorneys, and move the court to quash the al­
ternative writ of mandamus herein, and for grounds of 
said motion show:

(1) The relator has other adequate remedy at law.
(2) The relator has not complied with conditions 

precedent to a demand for the writ of mandamus.
(3) The relator has not made use of the means and 

manner provided by law to obtain his lawful demands.

Bespectfully submitted, Bichard W. Ervin, Attorney 
General; Frank J. Heintz, Assistant Attorney 
General, Attorneys for Bespondents.



9

[fol. 19] In t h e  S u p r e m e  C ourt  op F lorida 

[Title omitted]

O rder D e n y in g  M otion  to Q u a sh  A lter n a tiv e  W r it  of 
M andam us— Filed December 8, 1949

[fols. 20-21] Upon consideration of the motion of counsel 
for Respondents to quasb the alternative writ of manda­
mus heretofore issued herein, it is ordered that said mo­
tion be and the same is hereby denied and respondents are 
allowed thirty days from this date to file answer in this 
cause.

A True Copy. Test:
(S.) G-uyte P. McCord, Clerk Supreme Court. (Seal.)

[fol. 22] In t h e  S u pr e m e  C ourt of t h e  S tate of F lorida 

[Title omitted]

A n sw e r  of R e spo n d en ts , J. T hom as G u r n e y , T hom as W. 
B ry a n t , and J. H en so n  M a r k h a m , to A ltern a tiv e  W rit  
of M andam us— Filed January 7, 1950.

[fol. 23] In t h e  S u p r e m e  C ourt of t h e  S tate  of F lorida

T h e  S tate, of F lorida, ex rel, V irg il  D. H a w k in s , Relator,
vs.

B oard of C ontrol , a Body Corporate, etc., et al., Re­
spondents

A nsw er  of R e spo n d en ts , J. T hom as G u r n e y , T hom as W . 
B ryant , and J. H en so n  M a r k h a m , to A ltern a tiv e  W rit  
of M a ndam us .

The respondents, J. Thomas Gurney, Thomas W. Bryant, 
and J. Henson Markham, for answer to the alternative 
writ of mandamus issued in this cause, say:

1
They admit the matters and facts alleged in paragraph 

numbered 1 of said alternative writ, except that they are



10

no longer members of the Board of Control, nor is J. 
Thomas Gurney Chairman of said Board, as hereinafter 
more particularly set out.

2 .

They admit that the relator, at the time of the filing of 
his petition, desired to study law at the University of 
Florida, and that the University of Florida is supported 
and maintained by the State of Florida, and the taxpayers 
thereof, and that the relator was refused admission to said 
University. Respondents deny that the refusal of admis­
sion was arbitrary, and say that, on the contrary, ad- 
[fol. 24] mission of relator would have been, and would now 
be, unlawful, for reasons hereinafter set out.

3
They admit the matters and facts alleged in paragraph 

numbered 3 of said alternative wTrit.

4
They admit the matters and facts alleged in paragraph 

numbered 4 of said writ, except they deny that the relator, 
at the time of his application for admission, possessed, 
or now possesses, all lawful qualifications prescribed by 
the constitution and statutes of the State of Florida, the 
Board of Control and duly authorized officers and agents of 
the Board and of the University of Florida, in that the 
relator is a member of the negro race, and under the laws 
of the State of Florida, the rules and regulations of the 
Board of Control, which laws, rules and regulations govern 
the officers and agents of said Board and University of 
Florida, admission to the University of Florida is per­
missible only to white students.

5
They admit that respondent, R. S. Johnson, Registrar of 

the University of Florida, forwarded petitioner’s applica­
tion to the Board of Control, and show that it was his duty 
so to do under the laws of the State of Florida and the 
rules and regulations of the Board of Control; and they 
admit that at a regular meeting of the Board of Control, 
on May 13, 1949, at Tallahassee, Florida, the relator ap­
peared by his attorney for a hearing upon his application



11

for admission to the University, and that at said meeting, 
attended by a majority of the members of the Board of 
Control, the Board denied the application of relator and 
[fol. 25] refused to grant him admission to the first year 
class of the college of law at the University of Florida, 
because, under the constitution and statutes of the State 
of Florida, the relator, being a member of the negro race, 
could not be lawfully admitted to the University of Florida; 
but these respondents deny that such action on the part 
of the Board of Control was or is denial to the petitioner 
of equal protection of the laws on the ground of race color 
or contrary to the constitution of the United States. At 
that time, the Board of Control informed relator, through 
his attorney, that because there was then no actually func­
tioning Florida State institution of higher learning open 
to members of the negro race, where the courses of study 
he desired were offered, the Board was prepared to pro­
vide for him such courses of study at a college or university 
agreeable to him in another state, fully equal and as valua­
ble as any such course offered at any tax supported institu­
tion of higher learning in the State of Florida.

6
They admit that at the time of relator’s application the 

college of law at the University of Florida was the only 
tax supported and maintained law school in the State of 
Florida at which a law school was actually functioning 
and in operation, although said course was then, and had 
been for some time prior thereto, authorized and ordered 
set up, and has since been further provided for, at Florida 
Agricultural and Mechanical College for Negroes, at Talla­
hassee, Florida, which is a State supported and maintained 
institution of higher learning of the State of Florida within 
the State.

7
They admit that J. Hillis Miller, as President, and R. S. 

[fol. 26] Johnson, as Registrar of the University of Flor­
ida, respondents, refused to admit the relator to the Uni­
versity of Florida, but in so doing they acted under su­
perior authority of the Board of Control and the statutes 
and constitution of the State of Florida, and deny that such 
action on their part was denial to the relator of equal pro­
tection of the law; and deny that they were at the same time



12

admitting white applicants with less qualifications than the 
relator.

8

They deny that the relator has no adequate remedy at 
law other than the writ of mandamus for which he prays, 
and say that the relator does not have the right or privilege 
of pursuing the course of instruction requested at the Uni­
versity of Florida, for the reason that the relator is a mem­
ber of the negro race and admission to the University of 
Florida is, by the laws of said State, restricted to students 
of the white race; and that other and substantially equal 
provisions for giving to relator his requested courses of 
study have been made, as herein set out; and they deny that 
the respondents have authority to represent the public gen­
erally and show that the authority of all of the respondents 
is limited and fixed by the statutes of the State of Florida, 
and subject to the supervising power and control of the 
State Board of Education of Florida; and the authority of 
the respondents, J. Hillis Miller and B. S. Johnson, is fur­
ther limited and fixed by the rules and regulations of the 
Board of Control.

9
Further answering the alternative writ, these respond­

ents show that at the time of relator’s demand for admis­
sion to the University of Florida and its college of law, four 
other students of the negro race, scholastically qualified, 
[fob 27] demanded admission to other departments or col­
leges of the University of Florida, namely, the graduate 
schools of agriculture, chemical engineering, and pharmacy, 
which courses were offered at an institution of higher learn­
ing of the State established for white students, but not at 
the Florida Agricultural and Mechanical College for 
Negroes; that, upon being refused admission for the same 
reason as relator was refused admission, they filed their 
several petitions for mandamus, demanding their admis­
sion to the University of Florida at the same time that re­
lator’s petition was filed. Alternative writs wTere issued 
thereon by this court, presenting issues similar to those of 
the relator herein, and are now pending and companion 
cases,



13

These respondents say further, that in the constitution 
and statutes of the State of Florida it is provided that 
white and negro students shall not be taught in the same 
school, but that impartial provision shall be made for both. 
In pursuance of said constitutional and statutory require­
ments, the State of Florida has established and maintains 
certain institutions of higher learning for white students, 
among which are the University of Florida, at Gainesville, 
Florida, and the Florida State University, at Tallahassee, 
Florida, and has established and maintains an institution 
of higher learning for negro students, the Florida Agri­
cultural and Mechanical College for Negroes, at Tallahas­
see, Florida. All of said institutions have been in operation 
for many years. All State institutions of higher learning 
are under the management and control of the respondent, 
Board of Control, subject to the supervising power and au­
thority of the State Board of Education of Florida. From 
time to time, when the need therefor arose, courses were 
added at said institution of higher learning and the cur­
ricula expanded to meet reasonable demands or requests 
of qualified students; and it has been the long established 
[fol. 28] and fixed policy of the State of Florida, the Board 
of Control, and the State Board of Education of Florida 
to add additional schools and courses of instruction at all 
of said institutions when sufficient demand therefor ap­
pears.

11
Whatever rights the relator may have for instruction in 

his requested courses at a State operated institution of 
higher learning within the State, if it be determined that 
he has such rights, would be at the Florida Agricultural 
and Mechanical College for Negroes, and could not be law­
fully given him at the University of Florida; and the Board 
of Control and its member respondents have the option 
to provide the rights of the relator in that respect, what­
ever they may be, at a State operated institution of higher 
learning within the State other than at the University of 
Florida; that is, at the Florida Agricultural and Mechani­
cal College for Negroes.

After relator’s original application for admission to 
the summer, 1949, term of the University of Florida, he 
made no further application for admission to any sub­

10



34

sequent term or semester during tlae time these respond­
ents remained members of the Board of Control.

12
In pursuance of the policy set out in paragraph num­

bered 10 above, the Board of Control, in October, 1948, 
and prior to the demand of relator or other applicant, in­
cluded in its budget for the ensuing biennium for the 
Florida Agricultural and Mechanical College for Negroes, 
funds for the establishment of schools or colleges of law, 
chemical engineering, pharmacy, journalism, social work, 
[fol. 29] library science, and other graduate courses, for 
which it appeared requests might be made at said last 
named institution; and, shortly before its adjournment, 
in June, 1949, the Legislature, as was customary, made an 
appropriation for the Florida Agricultural and Mechani­
cal College for Negroes, in which there were certain funds 
which might lawfully be used to establish and install said 
demanded courses of study, or some of them. It then ap­
peared that insufficient funds would be available to satisfy 
the appropriations made for the several State agencies, 
and the State Budget Commission, in the exercise of its 
lawful authority, withheld a very substantial portion of all 
legislative appropriations, including that for the Florida 
Agricultural and Mechanical College for Negroes, until 
additional revenue should be provided by the Legislature 
at a special session to be called for that purpose. At 
the special session, in September, 1949, additional reve­
nue was provided for all State appropriations, including 
that for the Florida Agricultural and Mechanical College 
for Negroes, and a part, but not all, of the funds with­
held have been released.

13
Further answering, these respondents show that the 

terms of office of the respondents, J. Thomas Gurney, 
Hollis Binehart, and J. Henson Markham, who were a ma­
jority of the Board members, expired on June 27, 1949, 
but on request of the Governor of the State they held over 
until after said special session of the Legislature, when, 
on October 18, 1949, their successors were appointed and 
qualified as members of the Board of Control; and, there­
upon, said three respondents ceased to be members of the 
Board or to have any further authority and could take



15

no further action in the premises. These respondents are 
without knowledge on information, except hearsay, as to 
what may have transpired in regard to the matters alleged 
in said alternative writ since the date when their successors 
qualified.
[fols. 30-31] Wherefore, these respondents, having no 
longer any authority as to anything alleged in said writ, 
or claim therein, and no power to respond to any order 
that may be entered thereon, pray that as to them, and 
each of them, this proceeding be dismissed.

Richard W. Ervin, Attorney General; Prank J. 
Heintz, Assistant Attorney General, Attorneys for 
Respondents

I do certify that copy hereof has been furnished to Alex 
Akerman, Jr., attorney for relator, by mail, this 7th day 
of January, 1950.

Frank J. Heintz, Assistant Attorney General, At­
torney for Respondents.

[fol. 32] In t h e  S u pr e m e  C ourt of t h e  S tate of F lorida 

[Title omitted]

A n sw er  of R e spo n d en ts , B oard of C ontrol , a C orporation , 
N. B. J ordan, H ollis R in e h a r t , J. H il l is  M il l e r , and R. S. 
J o h n so n , to A ltern a tiv e  W r it  of M andam us—Filed Jan­

uary 7, 1950.
The respondents, Board of Control, a public corporation 

of the State of Florida, N. B. Jordan, Hollis Rinehart, J. 
Hillis Miller, and R. S. Johnson, for answer to the alterna­
tive writ of mandamus issued in this cause, say:

1
They admit the matters and facts alleged in paragraph 

numbered 1 of said alternative writ, except that respon­
dents, J. Thomas Gurney, Thomas W. Bryant, and J. Hen­
son Markham, are no longer members of the Board of 
Control, nor is J. Thomas Gurney now Chairman of said 
Board, as hereinafter more particularly set out.

3—6883



16

They admit that the relator, at the time of the filing of 
his petition, desired to study law at the University of 
Florida, and that the University of Florida is supported 
and maintained by the State of Florida, and the taxpayers 
thereof, and that the relator was refused admission to said 
University. Respondents deny that the refusal of admission 
[fol. 33] was arbitrary, and say that, on the contrary, 
admission of relator would have been, and would now be, 
unlawful, for reasons hereinafter set out.

3
They admit the matters and facts alleged in paragraph 

numbered 3 of said alternative writ.

4

They admit the matters and facts alleged in paragraph 
numbered 4 of said writ, except they deny that the relator, 
at the time of his application for admission, possessed, or 
now possesses, all lawful qualifications prescribed by the 
constitution and statutes of the State of Florida, the Board 
of Control and duly authorized officers and agents of the 
Board and of the University of Florida, in that the relator 
is a member of the negro race, and under the laws of the 
State of Florida, the rules and regulations of the Board of 
Control, which laws, rules and regulations govern the 
officers and agents of said Board and University of Florida, 
admission to the University of Florida is permissible only 
to white students.

5
They admit that respondent, R. S. Johnson, Registrar 

of the University of Florida, forwarded petitioner’s ap­
plication to the Board of Control, and show that it was his 
duty so to do under the laws of the State of Florida and the 
rules and regulations of the Board of Control; and they 
admit that at a regular meeting of the Board of Control, on 
May 13, 1949, in Tallahassee, Florida, the relator appeared 
by his attorney for a hearing upon his application for 
admission to the University, and that at said meeting, 
attended by a majority of the members of the Board of 
Control, the Board denied the application of relator and 
[fol. 34] refused to grant him admission to the first year

2



17

class of the college of law at the University of Florida, 
because, under the constitution and statutes of the State 
of Florida, the relator, being a member of the negro race, 
could not be lawfully admitted to the University of Florida; 
but these respondents deny that such action on the part of 
the Board of Control was or is denial to the petitioner of 
equal protection of the laws on the ground of race or color 
or contrary to the constitution of the United States. At 
that time, the Board of Control informed relator, through 
his attorney, that because there was then no actually func­
tioning Florida State institution of higher learning open to 
members of the negro race, where the courses of study he 
desired were offered, the Board was prepared to provide 
for him such courses of study at a college or university 
agreeable to him in another state, fully equal and as valu­
able as any such course offered at any tax supported institu­
tion of higher learning in the State of Florida.

6
They admit that at the time of relator’s application the 

college of law at the University of Florida was the only 
tax supported and maintained law school in the State of 
Florida at which a law school was actually functioning and 
in operation, although said course was then, and had been 
for some time prior thereto, authorized and ordered set 
up, and has since been further provided for, at Florida 
Agricultural and Mechanical College for Negroes, at Talla­
hassee, Florida, which is a State supported and maintained 
institution of higher learning of the State of Florida within 
the State.

7
They admit that J. Ilillis Miller, as President, and R. S. 

[fol. 35] Johnson, as Registrar of the University of Florida, 
respondents, refused to admit the relator to the University 
of Florida, but in so doing they acted under superior 
authority of the Board of Control and the statutes and 
constitution of the State of Florida, and deny that such 
action on their part was denial to the relator of equal 
protection of the law; and deny that they were at the same 
time admitting white applicants with less qualifications 
than the relator.



18

They deny that the relator has no adequate remedy at law 
other than the writ of mandamus for which he prays, and 
say that the relator does not have the right or privilege of 
pursuing the course of instruction requested at the Univer­
sity of Florida, for the reason that the relator is a member 
of the negro race and admission to the University of Florida 
is, by the laws of said State, restricted to students of the 
white race; and that other and substantially equal provi­
sions for giving to relator his requested courses of study 
have been made, as herein set out; and they deny that the 
respondents have authority to represent the public generally 
and show that the authority of all of the respondents is 
limited and fixed by the statutes of the State of Florida, 
and subject to the supervising power and control of the 
State Board of Education of Florida; and the authority 
of the respondents, J. Hillis Miller and R. S. Johnson, is 
further limited and fixed by the rules and regulations of 
the Board of Control.

9
Further answering the alternative writ, these respon­

dents show that at the time of relator’s demand for admis­
sion to the University of Florida and its college of law, 
four other students of the negro race, scholastically quali- 
[fol. 36] fied, demanded admission to other departments 
or colleges of the University of Florida, namely, the gradu­
ate schools of agriculture, chemical engineering, and phar­
macy, which courses were offered at an institution of higher 
learning of the State established for white students, but 
not at the Florida Agricultural and Mechanical College for 
Negroes; that, upon being refused admission for the same 
reason as relator was refused admission, they filed their 
several petitions for mandamus, demanding their admission 
to the University of Florida at the same time that relator’s 
petition was filed. Alternative writs were issued thereon 
by this court, presenting issues similar to those of the 
relator herqin, and are now pending and companion cases.

10
These respondents say further, that in the constitution 

and statutes of the State of Florida it is provided that 
white and negro students shall not be taught in the same

8



19

school, but that impartial provision shall be made for both. 
In pursuance of said constitutional and statutory require­
ments, the State of Florida has established and maintains 
certain institutions of higher learning for white students, 
among which are the University of Florida, at Gainesville, 
Florida, and the Florida State University, at Tallahassee, 
Florida, and has established and maintains an institution 
of higher learning for negro students, the Florida Agricul­
tural and Mechanical College for Negroes, at Tallahassee, 
Florida. All of said institutions have been in operation for 
many years. All State institutions of higher learning are 
under the management and control of the respondent, Board 
of Control, subject to the supervising power and authority 
of the State Board of Education of Florida. From time 
to time, when the need therefor arose, courses were added 
at said institutions of higher learning and the curricula 
expanded to meet reasonable demands or requests of quali­
fied students; and it has been the long established and fixed 
[fol. 37] policy of the State of Florida, the Board of Con­
trol, and the State Board of Educaton of Florida to add 
additional schools and courses of instruction at all of said 
institutions when sufficient demand therefor appears.

11
Whatever rights the relator may have for instruction in 

his requested courses at a State operated institution of 
higher learning within the State, if it be determined that 
he has such rights, would be at the Florida Agricultural 
and Mechanical College for Negroes, and could not be law­
fully given him at the University of Florida; and the 
Board of Control and its member respondents have the 
option to provide the rights of the relator in that respect, 
whatever they may be, at a State operated institution of 
higher learning within the State other than at the Univer­
sity of Florida ; that is, at the Florida Agricultural and 
Mechanical College for Negroes.

After relator’s original application for admission to the 
summer, 1949, term of the University of Florida, he has 
made no further application for admission to any subse­
quent term or semester, and the respondents now have 
[fol. 38] pending before them no application by the relator 
for instruction in any course in any institution, nor are they 
advised as to whether relator now desires instruction in



20

his requested courses at any future term or semester at 
any State institution of higher learning.

12
In pursuance of the policy set out in paragraph numbered 

10 above, the Board of Control, in October, 1948, and prior 
to the demand of relator or other applicant, included in its 
budget for the ensuing biennium for the Florida Agricul­
tural and Mechanical College for Negroes, funds for the 
establishment of schools or colleges of law, chemical engi­
neering, pharmacy, journalism, social work, library science, 
and other graduate courses, for which it appeared requests 
might be made at said last named institution; and, shortly 
before its adjournment, in June, 1949, the Legislature, as 
was _ customary, made an appropriation for the Florida 
Agricultural and Mechanical College for Negroes, in which 
there were certain funds which might lawfully be used to 
establish and install said demanded courses of study, or 
some of them. It then appeared that insufficient funds 
would be available to satisfy the appropriations made for 
the several State agencies, and the State Budget Commis­
sion, in the exercise of its lawful authority, withheld a very 
substantial portion of all legislative appropriations, in­
cluding that for the Florida Agricultural and Mechanical 
College for Negroes, until additional revenue should be 
provided by the Legislature at a special session to be called 
for that purpose. At the special session, in September, 
1949, additional revenue was provided for all State appro­
priations, including that for the Florida Agricultural and 
Mechanical College for Negroes, and a part, but not all, 
of the funds withheld have been released.

[fol. 39] 13
Further answering, these respondents show that the 

terms of office of the respondents, J. Thomas Gurney, Hollis 
Rinehart, and J. Henson Markham, who were a majority 
of the Board members, expired on June 27, 1949, but on 
request of the Governor of the State they held over until 
after said special session of the Legislature, when, on Octo­
ber 18, 1949, their successors were appointed and qualified 
as members of the Board of Control; and, thereupon, said 
three respondents ceased to be members of the Board or to 
have any further authority and could take no further action



21

in the premises, and are now without power or authority to 
respond to any order which may be entered herein.

14
And respondents further say that, in the meantime, the 

period for admission of any students, white or colored, to 
any of the State institutions of higher learning, at the 
summer term and fall term of 1949, had expired; and, on 
the 21st day of December, 1949, the Board of Control, as 
newly constituted, set up and established a school of law, 
and the other courses demanded by other negro applicants, 
as hereinabove set out, at the Florida Agricultural and 
Mechanical College for Negroes, by resolution, copy of 
which is hereto attached, as Exhibit A, and made a part of 
this answer; and the Board of Control has directed the 
authorities at the State institutions of higher learning to 
put said resolution and the things therein authorized and 
directed into immediate practice and effect.

As authorized in said resolution, if the relator still de­
clines to accept out-of-state scholarship or other provision 
which may be made for his instruction in the courses he has 
requested elsewhere than at a State institution established 
[fol. 40] for white students exclusively, and it should be 
held that said arrangement is insufficient to satisfy the 
relator’s lawful demands, the respondent, Board of Control, 
has made provision for relator’s immediate admission and 
enrollment at the Florida Agricultural and Mechanical Col­
lege for Negroes, in its law school, established at that in­
stitution, and is ready to there admit him, provided the 
relator shall make his application for instruction in said 
course within the time allowed for members of any other 
group to apply for admission to said course at any State 
institution of higher learning. And, in the event the neces­
sary facilities, equipment and personnel for said course of 
study should not be immediately available, at the Florida 
Agricultural and Mechanical College for Negroes, in Tal­
lahassee, upon his said renewed timely application for 
instruction in said course of study, the Board of Control 
has made provision for his instruction in said course of 
study, as in said resolution provided, at the only other in­
stitution of higher learning in the State of Florida offering- 
such course, until such time as adequate and comparable 
facilities and personnel for such course of study, substan­
tially equal to those provided at any tax supported institu­



22

tion of higher learning in the State, can he obtained and 
physically set up at the Florida Agricultural and Mechan­
ical College for Negroes, in Tallahassee, Florida.

Wherefore these respondents say that relator is not en­
titled to peremptory writ, but the same should be denied, 
the alternative writ quashed, and respondents hence dis­
missed.

Richard W. Ervin, Attorney General; Frank J. 
Heintz, Assistant Attorney General, Attorneys 
for Respondents.

[fol. 41] I do certify that copy hereof has been furnished 
to Ales Akerman, Jr., attorney for relator, by mail, this 
7th day of January, 1950.

Frank J. Heintz, Assistant Attorney General, Attor­
ney for Respondents.

[fo l. 42] E x h ib it

Resolution
Whereas, for many years it has been the policy of the 

Board of Control to establish at the Florida Agricultural 
and Mechanical College for Negroes such schools and 
courses as may be offered at any other of the State insti­
tutions of higher learning, whenever there were a sufficient 
number of applicants to justify the establishment of such 
schools and courses, and in the meantime providing for the 
occasional negro applicant for education in those courses by 
out-of-state scholarships; and it is believed that such policy 
has been carried out over many years to the reasonable 
satisfaction of all parties concerned; and this Board reaf­
firms that policy; and,

Whereas, Certain negro students have demanded admis­
sion to the University of Florida, where such courses are 
now given, and continuation of their demands is not un­
likely ; and,

Whereas, The Constitution of the State of Florida re­
quires that students of the white and negro races “ shall 
not be taught in the same school, but impartial provision 
shall be made for both” ;

Now, Therefore, in order to comply with the constitution



23

and laws of the State of Florida, as near as may be under 
existing circumstances, Be It Resolved that there is hereby 
established, at the Florida Agricultural and Mechanical 
Colleges for Negroes, schools of law, mechanical engineer­
ing, agriculture at graduate level and pharmacy at graduate 
level; and qualifications for admission to said courses shall 
be the same as those required for admission to said courses 
at other State institutions of higher learning in the State 
of Florida; and

Be It Further Resolved, That efforts to acquire the neces­
sary personnel, facilities, and equipment for such courses 
be reactivated and diligently prosecuted, with the view of 
[fol. 43] installing said personnel, facilities, and equipment 
for such courses at the Florida Agricultural and Mechanical 
College for Negroes, at Tallahassee, Florida, at the earliest 
date possible, thereby to more fully comply with the Consti­
tution and laws of the State of Florida; and that, in the 
meantime, and while diligent preparation is being made to 
physically set up said schools and courses at the Florida 
Agricultural and Mechanical College for Negroes, at Tal­
lahassee, Florida, further effort to be made to arrange with 
said applicants for out-of-state scholarships or other ar­
rangements agreeable to them, equal to their reasonable 
individual needs and affording them full and complete op­
portunity to obtain the education for which they have 
applied, where obtainable, at institutions other than Flor­
ida state operated institutions of learning for white 
students, and under circumstances and surroundings fully 
as good as may be offered at any State operated institution 
of higher learning in the State of Florida; and

Be It Further Resolved, in the event the court should 
hold that the foregoing provisions are insufficient to satisfy 
the lawful demands of said applicants, that temporarily, 
and only until completion of such acquisition of personnel, 
facilities and equipment for installation at the Florida 
Agricultural and Mechanical College for Negroes, at 
Tallahassee, comparable to those in institutions of higher 
learning of the State established for white students, the 
Florida Agricultural and Mechanical College for Negroes 
shall arrange for supplying said courses to its enrolled and 
qualified students at a Florida state operated institution 
of higher learning, where said courses may be given, and 
where the instructional personnel and facilities of such



24

institution in the requested courses shall be provided and 
used for the education of said applicants at such times and 
places, and in such manner, as the latter institution may 
prescribe; and the authorities of such last described state 
[fols. 44-45] operated institution of higher learning shall 
cooperate in making such arrangements, to the end that 
there shall be available to said students of the Florida Agri­
cultural and Mechanical College for Negroes, substantially 
equal opportunity for education in said courses as may be 
provided for white students under like circumstances. In 
providing such education, the authorities of both institutions 
shall at all times observe all requirements of the laws of 
the State of Florida in the matter of segregation of the 
races, etc.

Be It Further Resolved, That such instruction and facili­
ties to be provided by the State institution of higher learn­
ing, temporarily, as herein directed, shall be provided in 
such manner as will insure to graduates in such courses the 
same privileges and benefits as may be accorded by law to 
graduates of the same courses in institutions of higher 
learning in the State established for white students.

Be It Further Resolved, That actual cost of supplying 
said instruction shall be accurately determined and the insti­
tution reimbursed therefor from such funds appropriated 
for the Florida Agricultural and Mechanical College for 
Negroes as may lawfully be used for that purpose.

[fols. 46-47] In t h e  S u pr e m e  C ourt of F lorida 

[Title omitted]

M otion  for P erem ptory  W r it—Filed January 19, 1950
Comes now the Relator, Virgil D. Hawkins, and moves 

the Court to issue a Peremptory Writ of Mandamus di­
rected to the Respondents, Board of Control of Florida; 
N. B. Jordan and Hollis Rinehart as members of the Board 
of Control of Florida; J. Hillis Miller as President of the 
University of Florida; and R. S. Johnson as Registrar of 
the University of Florida, requiring said Respondents 
to admit Relators to the University of Florida, the Answer



25

of said Respondents notwithstanding, and as grounds for 
said Motion says:

1. That the allegations contained in the Answer filed by 
said Respondents whol-ly fail to set forth any legal reason 
why a Peremptory Writ should not issue.

Alex Akerman, Jr., Attorney for Relator.

I do certify that copy hereof has been furnished Richard 
W. Ervin, Attorney General and Frank J. Heintz, Assistant 
Attorney General, attorneys for respondents, by mail, this 
17th day of January, A. D., 1950.

Alex Akerman, Jr., Attorney for Relator.

[fo l. 48] In t h e  S u pr e m e  C ourt op F lorida, J u n e  T e r m , 
A. D. 1950, En B a n c .

T h e  S tate op F lorida, ex rel. V ir g il  D . H a w k in s , Relator,
vs.

T h e  B oard op C ontrol  of F lorida, et al., Respondents 

M andam us

Op in io n —Filed August 1, 1950
A case of original jurisdiction—Mandamus.
Alex Akerman, Jr., for Relator.
Richard W. Ervin, Attorney General and Frank J. 

Heintz, Assistant Attorney General, for Respondents.

S ebrin g , J . :
The relator, Virgil D. Hawkins, is a negro citizen and 

resident of the State of Florida. He possesses all the 
scholastic, moral and other qualifications, except as to race 
and color, prescribed by the laws of Florida and the rules 
and regulations of the State Board of Control for admis­
sion to the first year class of the College of Law of the Uni­
versity of Florida.

In April 1949 Hawkins applied for admission to the 
University of Florida, for attendance at a summer session 
of the first-year law class to begin in the summer of 1949. 
His application was denied by the Board of Control, the



26

governing body of the State University system, solely be­
cause of certain provisions of the Constitution and statutes 
[fol. 49] of Florida prohibiting the admittance of any but 
white students to the University, including the Law Col­
lege. Hawkins thereupon instituted this mandamus action 
against the members of the Board of Control, alleging the 
matters above set forth, averring that the College of Law 
of the University of Florida is the only tax-supported law 
school in the State of Florida, and charging that the refusal 
of the governing authorities to admit him to the College 
of Law solely because he was a negro constituted an arbi­
trary and illegal denial of the equal protection of the law 
guaranteed him by the Fourteenth Amendment to the Fed­
eral Constitution.

In due course the members of the Board of Control filed 
their return to the alternative writ issued in the cause, 
setting up as an answer to the charges made by the relator 
that under the Constitution and laws of the State of 
Florida only members of the white race may be lawfully 
admitted as students to the University of Florida and hence 
that the Board had no choice other than to deny the applica­
tion of the relator; that after relator’s original applica­
tion for admission to the 1949 Summer Term of the first year 
law class, which term had expired prior to the filing of the 
answer, no further application had been made by him for ad­
mission to any subsequent term or semester of the Univer­
sity and hence that the Board did not have before it when it 
filed its answer any application by the relator for instruc­
tion in any course in any institution, nor was the Board 
advised as to whether relator desired instruction in his 
requested courses at any future term or semester at any 
State institution of higher learning; that at the time of his 
application for admission to the University, the relator 
was informed that because there was no actually function­
ing state supported institution of higher learning in Flor­
ida open to members of the negro race which offered the 
courses desired by the relator, the Board was prepared to 
provide for him such courses of study at a college or uni­
versity agreeable to him in another state, fully equal and 
as valuable as any such course offered at any tax-supported 
[fol. 50] school in the State of Florida.

For further answer to the writ the respondents alleged, 
that the Constitution and statutes of the State of Florida



27

provide that white and negro students shall not he taught in 
the same schools but that impartial provision shall be made 
for both and that in pursuance of these requirements the 
State of Florida has established certain institutions of 
higher learning in the State, among which are the Univer­
sity of Florida, at Gainesville, Florida, and the Florida 
State University, at Tallahassee, Florida, both maintained 
for white students, and the Florida Agricultural and Me­
chanical College for Negroes, at Tallahassee, Florida, main­
tained exclusively for negroes; that these three state insti­
tutions have been in operation for many years and are under 
the management and control of the Board of Control, sub­
ject to the supervising power of the State Board of Educa­
tion, who, through a long established and fixed policy of 
providing substantially equal educational opportunities to 
white and negro races alike have from time to time added 
additional schools and courses of instruction at each of 
these institutions as the need for such additional schools 
and courses have been made to appear; that whatever rights 
the relator may have for instruction in his requested courses 
at a state operated institution of higher learning within the 
State, should it be determined by the court that he has such 
rights, would be at the Florida Agricultural and Mechanical 
College for Negroes and could not be lawfully given him at 
the University of Florida; that in pursuance of the long- 
established policy of the State to make impartial provisions 
for instruction to members of the white and negro races 
alike, where the need for such instruction is made to appear, 
the Board of Control had set up and established, on De­
cember 21, 1949—a date subsequent to the date of the insti­
tution of this suit but prior to the time that the Board of 
Control was required to make its answer—a school of law 
at the Florida Agricultural and Mechanical College for 
[fob 51] Negroes and had directed the governing head of 
said college to acquire the necessary personnel, facilities 
and equipment for such course of instruction at the school 
on the earliest possible date; that if, as authorized in the 
resolution establishing the school of law’ at the Florida 
Agricultural and Mechanical College for Negroes, “ the 
relator still declines to accept out-of-state scholarship or 
other provision which may be made for his instruction in 
the courses he has requested elsewhere than at a State 
institution established for white students exclusively, and



28

it should he held that said arrangement is insufficient to 
satisfy the relator’s lawful demands, the respondent, Board 
of Control, has made provision for relator’s immediate ad­
mission and enrollment at the Florida Agricultural and 
Mechanical College for Negroes, in its law school, estab­
lished at that institution, and is ready to there admit him, 
provided the relator shall make his application for instruc­
tion in said course within the time allowed for members of 
any other group to apply for admission to said course at any 
State institution of higher learning. And, in the event the 
necessary facilities, equipment and personnel for said course 
of study should not be immediately available at the Florida 
Agricultural and Mechanical College for Negroes in Talla­
hassee, upon his renewed timely application for instruction 
in said course of study, the Board of Control has made 
provision for his instruction in said course of study, as in 
said resolution provided, at the only other institution of 
higher learning in the State of Florida offering such course, 
until such time as adequate and comparable facilities and 
personnel for such course of study, substantially equal to 
those provided at any tax-supported institution of higher 
learning in the State, can be obtained and physically set up 
at the Florida Agricultural and Mechanical College for 
Negroes, in Tallahassee, Florida.”

Upon the coming in of the answer the relator moved for 
the issuance of a peremptory writ of mandamus, the return 
of the respondents notwithstanding, and the cause is nowT 
[fol. 52] before this court for final disposition.

As to the effect to be given the motion for the issuance of 
the peremptory writ the return of the respondents notwith­
standing, it is well to state at the outset that under our 
decided cases such a motion stands as the equivalent of a 
demurrer to a pleading in a krw action. It operates as an 
admission by the relator of the truth of the facts well 
pleaded by the respondent but claims that in law the return 
presents no sufficient reason why the relief sought in the 
alternative writ should not be granted. Lamb v. Harrison,
91 Fla. 927,108 So. 671; State v. Seaboard Air Line Ry. Co.,
92 Fla. 1139, 111 So. 281; State ex rel Atlantic Peninsular 
Holding Co. v. Butler, 121 Fla. 417, 164 So. 128; State v. 
Howell, 152 Fla. 866, 13 So. 2d 214; State ex rel Enby v. 
Wood, 140 Fla. 185, 191 So. 769; State v. City of Miami, 156 
Fla. 784, 24 So. 2d 705; Permenter v. Younan, 159 Fla. 226,



29

31 So. 2d 387. Such being its effect, the hearing on such 
a motion contemplates the entry of a final order without the 
submission of evidence, either quashing or dismissing the 
alternative writ or granting the peremptory writ to the 
extent that the prayer of the alternative writ is well- 
founded; State v. Seaboard Air Line Ry. Co., 92 Fla. 61, 109 
So. 656; Leonard Bros. Transfer & Storage Co. v. Carter, 
127 Fla. 198, 172 So. 924; State ex rel. Raulerson v. Smith, 
157 Fla. 838, 26 So. 2d 898.

Applying the rule just stated to the issues made by the 
writ and answer, it will be observed that the allegations of 
the answer raise two questions for determination: (1) Does 
the plan whereby the Board of Control offers to provide a 
legal education for the relator at a law school over which 
it has no jurisdiction and which is located outside the State 
of Florida, the relator being unwilling to accept the pro­
visions of the plan, accord to the relator the equal protection 
of the law guaranteed him under the Fourteenth Amend­
ment to the Federal Constitution? (2) If this proposed 
plan does not afford to the relator the equal protection of 
the laws, does the alternative plan for enrolling the relator 
[fol. 53] in the school of law recently established at the 
Florida Agricultural and Mechanical College for Negroes 
and making temporary provision for his instruction in the 
College of Law of the University of Florida until such time 
as adequate and comparable facilities and personnel for 
such course of study can be obtained and physically set up 
at the Florida Agricultural and Mechanical College for 
Negroes, satisfy the Constitutional requirements of equal 
protection?

If under the controlling law either of these questions is 
answered in the affirmative, it follows that the proper order 
to be entered should be one in favor of the respondents; if 
both questions should be answered in the negative the order 
to be entered should grant the relief sought by the relator.

The first question presented by the answer is not a new 
one. It has long been settled by the decisions of the Su­
preme Court of the United States—to which the state courts 
must adhere to the extent that such decisions are decisive 
of questions involving the application of the Federal Con­
stitution to any given situation—that the requirements of 
the equal protection clause of the Fourteenth Amendment to 
the Federal Constitution are not satisfied by a plan offered



30

by a state to its negro citizens to obtain legal education out­
side the state, where the state furnishes legal education 
within the state to its white citizens who desire to pursue 
such a course of study.

The first of these cases in which the issue was decided was 
Missouri ex rel. Gaines v. Canada, Registrar of the Uni­
versity of Missouri, decided in 1938 and reported in 305 
U. 8. 337, 59 S. Ct. 232, 83 L. Ed. 172. The essential facts 
of the case were that pursuant to the State’s policy of 
separating the races in its educational institutions, the 
curators of the University of Missouri, a tax-supported and 
maintained institution of higher learning in the State of 
Missouri, refused to admit a negro citizen of the State as 
a student in the law school of the University solely because 
of his race, and, there being no tax-supported university 
or college in the state where negro students were eligible 
[fol. 54] for courses in law, offered to the applicant in lieu 
of admittance to the University law school the opportunity 
to obtain his legal education at a law school in an adjacent 
state wherein negroes were acceptable for admission. The 
Supreme Court of the State of Missouri upheld the plan 
offered by the State of Missouri for the education of its 
Negro citizens outside the state, finding that the provision 
for legal education in other states of negroes resident in 
Missouri satisfied the constitutional requirement of equal 
protection. State v. Canada, 342 Mo. 121, 113 S.W. 2d 783. 
Upon appeal the Supreme Court of the United States re­
versed the holding of the state court, saying:

“ The basic consideration is not as to what sort of 
opportunities other States provide, or whether they 
are as good as those in Missouri, but as to what oppor­
tunities Missouri itself furnishes to white students and 
denies to negroes solely upon the ground of color. The 
admissibility of laws separating the races in the enjoy­
ment of privileges afforded by the state rests wholly 
upon the equality of the privileges which the laws give 
to the separated groups within the State. The question 
here is not of a duty of the State to supply legal train­
ing, or of the quality of the training which it does 
supply, but of its duty when it provides such training 
to furnish it to the residents of the State upon the basis 
of an equality of right. By the operation of the laws 
of Missouri a privilege has been created for white law



31

students which is denied to negroes by reason of their 
race. The white resident is afforded legal education 
within the State; the negro resident having the same 
qualifications is refused it there and must go outside 
the State to obtain it. That is a denial of the equality 
of legal right to the enjoyment of the privilege which 
the State has set up, and the provision for the payment 
of tuition fees in another State does not remove the 
discrimination . . . Nor can we regard the fact that 
there is but a limited demand in Missouri for the legal 
education of negroes as excusing the discrimination in 
favor of whites . . . Whether or not particular facilities 
shall be provided may doubtless be conditioned upon 
there being a reasonable demand therefor, but, if 
facilities are provided, substantial equality of treat­
ment of persons . . . under like conditions cannot be 
refused . . .

“ 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 fur­
nish him within its borders facilities for legal educa­
tion substantially equal to those which the State there 
afforded for persons of the white race, whether or not 
other negroes sought the same opportunity.

“ It is urged, however, that the provision for tuition 
outside the State is a temporary one,—that it is in­
tended to operate merely pending the establishment of 
[fol. 55] a law department for negroes at Lincoln 
University. While in that sense the discrimination 
may be termed temporary, it may nevertheless con­
tinue for an indefinite period by reason of the discre­
tion given to the curators of Lincoln University and the 
alternative of arranging for tuition in other States, as 
permitted by the state law as construed by the state 
court, so long as the curators find it unnecessary and 
impracticable to provide facilities for the legal instruc­
tion of negroes within the State. In that view, we 
cannot regard the discrimination as excused by what is 
called its temporary character.” (Italics supplied).

See also Sipuel v. Board of Regents, 332 U.S. 631, 68 S. Ct.
299, 92 L. Ed. 247, rev’g. 199 Old. 36, 180 P. 2d 135; and
McLaurin v. Oklahoma State Regents for Higher Ed., 87
P. Supp. 526.



32

The decision of the Supreme Court of the United States 
from which we have quoted is binding upon this court in 
respect to the Federal constitutional question therein de­
cided. Accordingly, it must be held, on authority of the 
case, that the plan offered by the Board of Control for 
giving the relator out-of-state schooling as an only means 
of affording him a legal education, while law school training 
is provided within the state for white students, does not 
comply with the mandatory provisions of the Fourteenth 
Amendment to the Federal Constitution, which require that 
equal protection of the law shall be accorded to every 
citizen.

The alternative plan provided by the Board of Control 
for the legal education of the relator at a law school within 
the state presents quite a different situation. As appears 
from the answer filed by the respondents, the allegations 
whereof are admitted to be true under the state of the plead­
ings, the Board of Control, since the institution of the suit, 
has established a school of law at the Florida Agricultural 
and Mechanical College for Negroes, located at Tallahassee. 
The Board is ready to admit the relator to this law school, 
provided he makes his application within the time allowed 
for members of any other group to apply for admission to 
a course in law at any other tax-supported law school in 
Florida. At the newly created law school for negroes, 
courses of study will be provided for the relator on a basis 
and under conditions equal to those at any tax-supported 
[fol. 56] institution of higher learning for white students 
in the State, as soon as these courses can be actually and 
physically set up and placed in operation. If at the time 
of his enrollment the Board has been unable to have a 
course in law physically functioning and in actual operation 
at the Florida Agricultural and Mechanical College for 
Negroes, the relator will be given instruction temporarily 
at the state institution of higher learning for white students 
which offers a law course. Upon graduating and receiving 
his degree in law from the Florida Agricultural and Me­
chanical College for Negroes, the relator will be entitled to 
all benefits and privileges accorded to graduates of any 
other tax-supported law school in the State of Florida.

In our view this alternative plan presented by the respon­
dents in their answer satisfies all the requirements of the 
equal protection of the laws clause of the Federal Constitu­
tion. Moreover, it conforms as nearly as it can, with due



33

regard to the requirements of the paramount Federal law, 
with the long established policy of the State of Florida that 
there shall he a system of segregation of the races in the 
state school system but that impartial provision shall be 
made in the schools for white and negro students alike. 
See Section 12, Article XII, Constitution of Florida; Secs. 
228.09, 239.01, as amended, Florida Statutes, 1941, F.S.A. 
For under the plan the State will furnish the relator with 
the legal education requested as soon as such course of 
study will be furnished to new applicants of any other race 
group. It will provide the necessary instruction at a tax- 
supported college or university within the borders of the 
state. It will offer to the relator facilities for legal educa­
tion at a negro college which, according to allegations of 
the answer and admitted by the motion for peremptory writ 
to be true, will be substantially equal to those offered within 
the state at any tax-supported institution of higher learn­
ing whose enrollment is restricted to white students. It will 
[fol. 57] stand ready to furnish law instruction, tempor­
arily, at the State university maintained exclusively for 
white students, in the event adequate facilities for teaching 
the course are not actually and physically available at the 
state law school established for negroes at the time of 
relator’s application and enrollment.

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 polit­
ical right and privilege guaranteed the citizen by the pro­
visions 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 opportunities to Florida 
citizens of different race groups has been preserved. See 
Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59 S. Ct. 
232, 83 L. Ed. 172, rev’g. 342 Mo. 21, 113 S.W. 2d 783, 
complying with mandate 344 Mo. 1238, 131 S.W. 2d 217; 
McLaurin v. Oklahoma State Regents for Higher Ed.,— 
IJ.S.—, (June 5, 1950) rev’g. 87 F. Supp. 528; Fisher v. 
Hurst, 333 U.S. 147, 68 S. Ct. 389, 92 L. Ed. 604, denying 
motion for conforming to mandate of Sipuel v. Board of 
Regents, 332 U.S. 631, 68 S. Ct. 299, 92 L. Ed. 247, in 199 
Old. 586, 190 P. 2d 437; Sweatt v. Painter,— U.S.—, (June 
5,1950), rev’g. — Ct. Civ. App.— (Texas), 210 S.W. 2d 442.



34

The mere fact that under the plan the Board of Control 
proposes to enroll the relator in the Florida Agricultural 
and Mechanical College for Negroes instead of at the Uni­
versity of Florida maintained for whites is entirely without 
legal significance; as is also the fact that under the plan 
the relator may possibly receive part of his instruction at 
a law school maintained for whites and the remainder at a 
law school established exclusively for negroes and finally 
receive his degree from the latter institution if ever he 
successfully completes his course of study. It is for each of 
[fol. 58] the states to decide upon the method to be pursued 
by it for providing public education to its citizens; and so 
long as the method adopted does not infringe, impair or 
abridge the personal political rights of the citizen the 
decision cannot be made the subject of judicial interference. 
See Gong Lum v. Rice, 275 U.S. 78, 48 S. Ct. 91, 72 L. Ed. 
172; Cumming v. County Board of Education, 175 U.S. 528, 
20 S. Ct. 197, 44 L. Ed. 262; State v. Witham, 179 Tenn. 250, 
165 S.W. 2d 378; Compare Sweatt v. Painter,— U.S.—, 
(June 5, 1950), rev’g. — Ct. Civ. App.— (Texas), 210 S.W. 
2d 442; McLaurin v. Oklahoma State Regents for Higher 
Ed.,— U.S.— (June 5, 1950), rev’g. 87 F. Supp. 528.

As stated in Plessy v. Ferguson, 163 U.S. 537, 16 S. Ct. 
1138, 41 L. Ed. 256, with respect to the effect of the Four­
teenth Amendment in regard to state laws and regulations 
requiring segregation of races in state supported institu­
tions :

“ The object of the amendment was undoubtedly to 
enforce the absolute equality of the two races before 
the law, but in the nature of things it could not have 
been intended to abolish distinctions based upon color, 
or to enforce social, as distinguished from political 
equality, or a commingling of the two races upon terms 
unsatisfactory to either. Laws permitting, and even 
requiring, their separation in places where they are 
liable to be brought into contact do not necessarily 
imply the inferiority of either race to the other, and 
have been generally, if not universally, recognized as 
within the competency of the state legislatures in the 
exercise of their police power. The most common 
instance of this is connected with the establishment of 
separate schools for white and colored children, which 
have been held to be a valid exercise of the legislative



35

power even by courts of states where the political 
rights of the colored race have been longest and most 
earnestly enforced. . . . The distinction between laws 
interfering with the political equality of the negro and 
those requiring the separation of the two races in 
schools, theatres, and railway carriages has been fre­
quently drawn by this court.”

This holding has been expressly approved and followed in 
an unbroken line of decisions of the Federal Courts recog­
nizing or upholding the validity of state laws which require 
segregation of races in state supported institutions or 
facilities, when such laws have been attacked on the ground 
that they result in unlawful discrimination. See Gumming* 
[fol. 59] v. County Board of Education, 175 U.S. 528, 20 S. 
Ct. 197, 44 L. Ed. 262; McCabe v. A. T. & S. F. R. Co., 235 
U.S. 151, 35 S. Ct. 69, 59 L. Ed. 169; Gong Lum v. Rice, 
275 U.S. 78, 48 S. Ct. 91, 72 L. Ed 172; Missouri ex rel. 
Gaines v. Canada, 305 U.S. 337, 59 S. Ct. 232, 83 L. Ed. 
208; Sipuel v. Oklahoma Board of Regents, 332 TJ.S. 631, 68 
S. Ct. 299, 92 L. Ed. 247.

So it is that in making provision for public education 
for its citizens, the State, in its discretion, may establish 
separate schools for whites and negroes — indeed should 
and must do so where the state constitution and statutes 
so require — without being thought guilty of any infraction 
of the Federal law solely by reason of that fact; the only 
proper inquiry in a given case being whether, having under­
taken the burden of educating its citizens at public expense, 
the separate facilities provided each of the races affords 
substantially equal accommodations and opportunities to 
both races alike. And while the Fourteenth Amendment to 
the Federal Constitution requires that substantially equal 
opportunities and privileges shall, be afforded every citizen 
regardless of race or color, it is so well settled as hardly 
to need citation of authority that equality of treatment 
need not mean identity of treatment, with respect to a 
tax-supported facility. Hall v. DeCuir, 95 U.S. 485, 503, 
24 L. Ed. 547; People ex rel. Cisco v. School Board, 161 
N.Y. 598, 48 L.R.A. 113; Annotation 103 A.L.R. 713.

The relator attempts to make some point of the fact that 
the answer shows on its face that the resolution by which 
the Board of Control created and established the school 
of law at the Florida Agricultural and Mechanical College



36

for Negroes was adopted subsequent to suit and after the 
alternative writ had been served upon the respondents; 
the implication being that by reason of that fact the respon­
dents should be precluded from setting up the establishment 
of the law school, as a defense in their answer.
[fol. 60] We do not deem the point of any consequence. 
The fact that the resolution of the Board of Control was 
adopted after the issuance of the alternative writ does 
not preclude the respondents from setting up the creation 
and establishment of the new school of law as a complete 
and sufficient answer to the relief sought by the writ. ‘ ‘ The 
alternative writ of mandamus being itself in the nature of 
a rule to show cause, any cause which exists at the time 
fixed for making return or showing cause is available as an 
answer to the mandate of the writ. And this principle 
holds good, even though the issuing and serving of the 
alternative writ be regarded as the beginning of an action; 
and any fact which occurs after service of the alternative 
mandamus, if of such a nature as to constitute a sufficient 
answer to the mandate of the court, may be set forth in 
the return by way of defense.” High’s Extraordinary 
Legal Remedies, 3rd Ed., Sec. 475, p. 456; see also, State 
ex rel. Sharp v. Weeks, 93 Mo. 499, 6 S.W. 266; State v. 
Board of Metropolitan Police Commissioners, 170 Ind. 
133, 83 N.E. 83; State ex rel Haley v. Dilworth, 80 Mont. 
I l l ,  258 P. 250; State v. Henderson, 350 Mo. 968 169 
S.W. 2d 389.

A final point suggested by the relator—but one we deem 
to be without merit on the state of the pleadings—is that 
inasmuch as the law school at Florida Agricultural and 
Mechanical College for Negroes has been but recently 
established, it must follow that proper adequate facilities 
and sufficient teaching personnel will not be actually avail­
able at the negro college when the time comes for him to 
begin his course of study.

It is clear from the record that at the present time the 
relator does not have an application pending for admission 
to a current or future term of a first-year law class at 
any State maintained institution of higher learning; the 
application formerly submitted by him being only for ad­
mission to the first year class of the College of Law of 
the University of Florida for attendance at the 1949 sum- 
[fol. 61] mer session, now long since past. What the



relator suggests, therefore, with respect to facilities at 
the negro college, may or may not prove true, in whole 
or in part; the matter being dependent upon the seasona­
bleness with which he renews his application. Certainly, 
the requirement that he keep his application current for 
each succeeding term is not unreasonable, for as much as 
this is required of every student, whether white or negro, 
desirous of attending classes at any state maintained in­
stitution of higher learning. Without such requirement 
it is plain that budgets comprehensive enough to meet le­
gitimate educational needs could never be intelligently 
framed nor could state funds be made available in every 
instance to meet them.

The bona fides of the alternative plan offered by the 
Board of Control and the Board’s authority to establish 
the law school at the negro college are not open to question 
by the relator under the pleadings in this proceeding, for 
by its answer the Board has shown that it will offer sub­
stantially equal opportunities to the relator and under 
the controlling statutes the Board “ has jurisdiction over 
and complete management and control” of the several uni­
versities and college of the State’s University system, and 
“ is invested with full power and authority to make all 
rules and regulations necessary for their governance, not 
inconsistent with the general rules and regulations made 
or which may be made at any joint meeting of the said 
board with the state board of education . . .  to have full 
management, possession and control of each and every of 
the said institutions and every department thereof . . . 
to provide for the course of instruction and the different 
branches and grades to be kept and maintained thereat, 
and to alter and change the same . . .  to make and pre­
pare all necessary budgets of expenditures for the en­
largement, proper furnishing, maintenance, support and 
conduct of the same . . . ” Section 240.04, Florida Stat­
utes, 1941, F.S.A.
[fol. 62] The Board’s resolution appended to the answer 
mandatorily requires, without a single element of discre­
tion left to any school head whether or not to obey the 
mandate, the physical establishment of the law school 
thereby created at the Florida Agricultural and Mechanical 
College for Negroes, with public funds (of which there are 
some for these purposes) as soon as the necessary physi­



38

cal equipment and teaching personnel can be assembled. 
It also mandatorily requires that if the law school is not 
in position actually to function at the time of the enroll­
ment of the relator after timely renewal of his applica­
tion, then and in that event, the relator will be given in­
struction in his desired course at any other State institu­
tion within the State offering the course. Under these ar­
rangements it is apparent that whatever the state of the 
facilities present at the negro college at the time of the 
enrollment of the relator at the college, he will receive 
immediate instruction in his desired course of a calibre 
substantially equal to, perhaps identical with, that received 
by any white student enrolled at the only tax-supported in­
stitution now offering the course of study within the State 
of Florida.

Due to the nature of the issues arising out of the plead­
ings, it is our conclusion that the entry of a final order 
herein should be withheld and the jurisdiction of the cause 
retained until it be shown to the satisfaction of this court 
either that the Board of Control has furnished, or has 
failed to furnish, to the relator, in accordance with the 
principles stated in this opinion, and after his due appli­
cation for enrollment, such opportunities and facilities for 
pursuing his desired course of study as are substantially 
equal to those afforded all other students duly enrolled in 
the same or a like course of study at any of the tax-sup­
ported institutions of higher learning within the State 
wherein such course is offered.

Either party to this cause may apply in this proceeding 
for the entry of an appropriate order finally disposing 
[fols. 63-64] of the case, after due and regular application 
for enrollment has been made by the relator and such 
opportunities and facilities have or have not been made 
available to him in such a tax supported institution of 
higher learning.

It is so ordered.
Adams, C. J . ; Terrell, Chapman, Thomas, Hobson and 

Roberts, J.J., Concur.



39

[fol. 65] In t h e  S u pr e m e  C ourt of F lorida 

[Title omitted]

M otion  for  P erem ptory  W r it  of M andam us— May 16, 1951
Comes now the Relator, Virgil D. Hawkins, by his under­

signed Attorney and moves the Court to issue a Peremp­
tory Writ of Mandamus directed to the Respondents, Board 
of Control of Florida; N. B. Jordan and Hollis Rinehart 
as members of the Board of Control of Florida; J. Hollis 
Miller as President of the University of Florida ; and R. S. 
Johnson Registrar of the University of Florida, requiring 
said Respondents to admit Relators to the University of 
Florida, the Answer of said Respondents notwithstanding, 
and as grounds for said Motion says:

1. That the Respondents have failed to provide Relator 
the equal educational opportunities in accordance with the 
interlocutory order of this Court rendered on August 1, 
1950; that Relator hereby applies for further relief in this 
cause in accordance with the Court’s mandate and re­
quests this Court to issue a peremptory writ of mandamus 
at this time as prayed for in Relator’s complaint requiring 
the Respondents to admit him instanter to the University 
of Florida in order that he may thereby receive educational 
opportunities and advantages equal to those available to 
white persons at the University of Florida.
[fols. 66-67] 2. That the Relator has exhausted all rea­
sonable means available to him for attaining admittance 
to the University of Florida the only institution in the 
State of Florida supported and maintained by the tax­
payers of the State of Florida offering courses necessary 
in obtaining the degree in his chosen profession; that the 
creation of the purported school of law on paper for Ne­
groes at the Florida A & M College and/or the alterna­
tive plan adopted by the Board of Control of Florida and 
made a part of Respondent’s answer does not accord to 
Relator the equal protection of the laws as required by 
the Fourteenth Amendment to the Constitution of the 
United States.

3. That on August 1, 1950, when the Court handed down 
a decision in this case, the Respondents had made availa­
ble, on paper, legal education at the Florida A & M Col­
lege for Negroes; that in fact there is no law school at the



40

Florida A & M College; and that the only state-supported 
institution where Relator can secure educational opportu­
nities and advantages for a legal education equal to those 
available to white students is at the University of Florida; 
that no steps have been made to provide Relator with legal 
educational opportunities and advantages within the state 
since the decision of this Court, on August 1, 1950; and 
that Relator has now lost one whole year in which he 
could have been pursuing a legal education.

W h e r e fo r e , in accordance with the decision of this Court, 
on August 1, 1950, Relator hereby applies for further re­
lief and requests the Court to issue a peremptory writ of 
mandamus ordering his admission as a regular student in 
the Law School of the University of Florida.

(S.) H. E. Hill, Attorney for Relator, 

[fol. 68] I n  t h e  S u pr e m e  C ourt of F lorida 

June Term, A. D. 1951 

En Banc.

Supreme Court #  21,138

T h e  S tate of F lorida, ex rel, Virgil D. Hawkins, Relator,
vs.

B oard of C ontrol , a body corporate etc., et al., Respondents

Op in io n — Filed June 15, 1951
A Case of Original Jurisdiction—Mandamus.
H. E. Hill, for Relator, Richard W. Ervin, Attorney 

General and Frank J. Heintz, Assistant Attorney General, 
Respondents.

Sebring, Chief Justice.
This cause is before the Court on motion for the entry of 

a peremptory writ of mandamus notwithstanding the return 
filed by the respondents in the proceedings.

Virgil D. Hawkins, a negro citizen and resident of 
Florida, instituted a mandamus proceeding in June, 1949, 
against the Board of Control of Florida to require the 
Board to allow him to enroll as a law student at the Univer­



41

sity of Florida for attendance at a summer session to be 
held in 1949. He charged in his petition that the' Univer­
sity of Florida was the only tax-supported law school in 
Florida that maintained and operated a law school and 
that he had been denied admission solely on the ground 
that he was a member of the negro race. In due course 
[fol. 69] the Board of Control filed their return to the 
alternative writ issued in the cause, alleging among other 
things, in substance, that the Constitution and Statutes of 
the State of Florida provide that white and negro students 
shall not be taught in the same schools but that impartial 
provision shall be made for both and that in pursuance of 
these requirements the State of Florida has established 
certain institutions of higher learning in the State, among 
which are the University of Florida and the Florida State 
University, both maintained for white students, and the 
Florida Agricultural and Mechanical College for negroes, 
maintained exclusively for negroes; that these three state 
institutions have been in operation for many years and are 
under the management and control of the Board of Control, 
subject to the supervising power of the State Board of 
Education, who, through a long established and fixed policy 
of providing substantially equal educational opportunities 
to white and negro races alike have from time to time added 
schools and courses of instruction at each of these institu­
tions as’ the need for such additional courses has been made 
to appear; that whatever rights the relator may have for 
instruction in his requested courses at a state operated 
institution of higher learning within the State would be at 
the Florida Agricultural and Mechanical College for 
Negroes and could not be lawfully given him at the Univer­
sity of Florida ; that the Board of Control had set up and 
established a school of law at the Florida Agricultural and 
Mechanical College for Negroes and had directed the gov­
erning head of said college to acquire the necessary 
personnel, facilities and equipment for such course of 
instruction at the school on the earliest possible date; that 
the Board of Control has made provision for relator’s 
immediate admission and enrollment at the Florida Agri­
cultural and Mechanical College for Negroes, in its law 
school, and is ready to there admit him, provided the 
relator shall make his application for instruction in said 
[fol. 70] courses within the time allowed for members of 
any other group to apply for admission to said course



42

at any State institution of higher learning. And, in the 
event the necessary facilities, equipment and personnel for 
said course of study should not be immediately available at 
the Florida Agricultural and Mechanical College for 
Negroes, upon his renewed timely application for instruc­
tion in said course of study, the Board of Control has made 
provision for his instruction in said course of study at the 
only other institution of learning in the State of Florida 
offering such course, namely, the University of Florida, 
until such time as adequate and comparable facilities and 
personnel for such course of study, substantially equal to 
those provided at any tax-supported institution of higher 
learning in the State, can be obtained and physically set 
up at the Florida Agricultural and Mechanical College. 
See State ex rel Hawkins v. Board of Control, Florida 
Reports, 47 So. 2d 603.

After the answer was filed the relator moved for the 
issuance of a peremptory writ the return of the respondents 
notwithstanding. The effect of the motion, as a matter of 
pleading, was to admit the truth of the facts well pleaded in 
the return but to assert that as a matter of law the return 
failed to present a sufficient reason why the relief sought in 
the alternative writ should not be granted. See Hawkins v. 
Board of Control, supra.

Upon consideration of the motion the Court held the 
return sufficient, as a matter of pleading, and entered an 
interlocutory order, which provided: “ Due to the nature 
of the issues arising out of the pleadings, it is our conclusion 
that the entry of a final order herein should be withheld and 
the jurisdiction of the cause retained until it be shown to 
the satisfaction of this Court either that the Board of 
Control has furnished, or has failed to furnish, to the 
relator, in accordance with the principles stated in this 
opinion, and after his due application for enrollment, such 
opportunities and facilities for pursuing his desired course 
of study as are substantially equal to those afforded all 
[fol. 71] other students duly enrolled in the same or a like 
course of study at any of the tax-supported institutions of 
higher learning within the State wherein such course is 
offered. Either party to this cause may apply in this pro­
ceeding for the entry of an order finally disposing of the 
case, after due and regular application for enrollment has 
been made by the relator and such opportunities amd 
facilities have or have not been made available to him in



43

such a tax-supported institution of higher learning.” 
(Italics supplied).

Approximately ten months after the entry of this inter­
locutory order the relator filed the motion now before the 
Court, renewing his request for the issuance of a peremp­
tory writ the return notwithstanding. As grounds for the 
motion the relator avers “ that the Respondents have failed 
to provide Relator the equal educational opportunities in 
accordance with the interlocutory order of this Court ren­
dered on August 1, 1950 .. . That the Relator has exhausted 
all reasonable means available to him for attaining ad­
mittance to the University of Florida, the only institution 
in the State of Florida supported and maintained by the 
tax payers of the State of Florida offering courses neces­
sary in obtaining the degree in his chosen profession; that 
the creation of the purported school of law on paper for 
Negroes at the Florida Agricultural and Mechanical College 
and/or the alternative plan adopted by the Board of Control 
of Florida and made a part of Respondents’ answer does 
not accord to Relator the equal protection of the laws as 
required by the Fourteenth Amendment to the Constitution 
of the United States.”

A mere casual inspection of the motion discloses that the 
relator has made no showing entitling him to the issuance of 
the peremptory writ. The strongest averment in favor of 
the relator is the pure legal conclusion that the relator “ has 
exhausted all reasonable means available to him for attain­
ing admittance to the University of Florida,” without any 
averment appearing in the motion as to what steps, if any, 
[fols. 72-73] have been taken by the relator to enroll for the 
law course he desires to pursue or otherwise to bring him­
self within the principles enunciated in State ex rel Hawkins 
v. Board of Control, supra. Moreover, the motion is not 
accompanied by any proof of the matters alleged in the 
motion—assuming, for the sake of argument only that the 
averments are sufficient—and it is elementary that a motion 
is not in and of itself proof of the averments therein con­
tained.

Accordingly, the motion for peremptory writ the return 
notwithstanding should be, and same is hereby, denied, with­
out prejudice to the right of the relator to move for the 
entry of a peremptory writ when he is able to show to the 
satisfaction of the Court that he has brought himself within



44

the principles enunciated in State ex rel Hawkins v. Board 
of Control, supra.

It is so ordered.
T errell, Chapman, A dams, H obson and R oberts, JJ., 

Concur.
T homas, J., not partic ipa ting .

[fols. 74-76] In t h e  S u pr e m e  C ourt of t h e  S tate of
F lorida

[Title omitted]

M otion  D ir ec tin g  Ce r tific a tio n  of R ecord—Filed August
15, 1951

Comes now the Relators by their attorney undersigned 
and thereby directing the Clerk to certify the entire record 
in the above styled cause, inclusing pleadings, testimony and 
exhibits, if any.

(S.) H. E. Hill, 525 Second Avenue, Daytona Beach, 
Florida, Attorney for Relators.

Certificate of Service
I do hereby certify that copy hereof have been furnished 

by (mail) (delivery) this 1 4 th  day of August 1951 to: 
Richard T. Ervin, Attorney General.

(S.) H. E. Hill, Attorney.

(6883)



[fo l. 45] S u p r e m e  C ourt op t h e  U n it e d  S tates , O ctober
T er m , 1951

No. —

S tate ex rel  H a w k in s , et al., Petitioners,
vs.

B oard op C ontrol

Order E xten d in g  T im e  to F il e  P e t it io n  for W rit  op
Certiorari

It is ordered that the time for filing petition for writ of 
certiorari in the above-entitled cause be, and the same is 
hereby, extended to and including September 15th, 1951.

Stanley Reed, Associate Justice of the Supreme 
Court of the United States.

Hated this 13th day of September, 1951.

( 7138)



45

[fol. 45] In t h e  S u pr e m e  C ourt  of F lorida 

[Title omitted]
M otion  for P erem ptory  W rit  and F in a l  J u d g m en t— Filed

May 28, 1952
Comes now the Relator, Virgil D. Hawkins, by his under­

signed attorney and moves this Honorable Court to issue 
a Peremptory Writ of Mandamus directed to Respondents, 
Board of Control of Florida; N. B. Jordan and Hollis 
Rhinehart as members of the Board of Control; and R. S. 
Johnson, Registrar of the University of Florida, requiring 
said Respondents to admit Relator to the University of 
Florida and for Final Judgment in said cause, the answer 
of said Respondents notwithstanding, and as grounds for 
said Motion says:

I
That since the rendition of the Courts initial opinion in 

the case of State ex rel. Hawkins vs. Board of Control of 
Florida et ah, 47 So. 2d 608 et seq., the Relator has re­
applied and made due and regular re-application for enroll­
ment and admission to the School of Law at the University 
of Florida and has complied with all requirements neces­
sary for enrollment and admission at said institution to no 
avail and is beset with obstacles wholly beyond the intend­
ment of his constitutional rights and the essentials of 
human well-being and beyond any recognizeed constitu­
tional social expediency; the Relator having exhausted his 
remedies save and except the relief to be afforded by this 
Honorable Court.

II
That the judgment heretofore rendered by this Honor­

able Court in this said cause is a nisi order and interlocu­
tory in its nature and not an appealable judgment. That 
the Relator desires to take an appeal therefrom but is pre­
cluded from so doing unless this Court enters a Final Judg- 
[fol. 46] ment and to that end the Relator stands on his 
pleadings as filed herein.

III
That all pleadings have been submitted, issues joined and 

proof taken and being conscious of the morality and justice



46

of his cause as now here contended for thus submit himself 
to this Honorable Court to the end that a Peremptory Writ 
of Mandamus be granted as prayed for and that a Final 
Judgment be entered in this cause.

Wherefore, Relator moves this Honorable Court for the 
issuance of a Peremptory Writ of Mandamus and that 
Final Judgment be entered in the above entitled cause.

(S.) H. E. Hill, 525y2 Second Avenue, Daytona 
Beach, Florida.

[fo ls . 47-48] S tate of F loeida ,
County of —:

Affidavit
Before me personally appeared Virgil D. Hawkins, the 

undersigned authority, who deposes and says that in the 
year 1949 he petitioned the Florida State Supreme Court 
for admission to the School of Law at the University of 
Florida; that since the Court’s initial opinion rendered 
August 1, 1950, he has reapplied for admission 2 times to 
no avail and in said reapplication he did request that the 
same be considered a continuing one until he succeeds in 
gaining admission to the said School at said University. 
The last application was made subsequent to April of 1952.

(S.) Virgil D. Hawkins, Affiant.

Sworn to and subscribed before me this 2nd day of 
June, A. D. 1952. (S.) Edward D. Davis, Notary
Public, State of Florida at Large. My commis­
sion expires Oct. 24, 1953. Bonded by American 
Surety Co. of N. Y. (N. S.)

Certificate of Service omitted in printing.



47

[fol. 49] In t h e  S u p r e m e  C ourt op F lorida , J u n e  T e r m ,
A. D .1952

En Banc

T i-ie  S tate op F lorida, ex Rel. V ir g il  D. H a w k in s , Relator,
vs.

B oard op C ontrol , a Body Corporate, et al., Respondents

M andam us

S u p r e m e  C ourt #21,138

A case of original jurisdiction.—Mandamus.
H. E. Hill, for Relator.
Richard W. Ervin, Attorney General and Frank J. 

Heintz, Assistant Attorney General, for Respondents.

Op in io n —Filed August 1, 1952

S ebrin g , C. J . :

This is the third appearance of this cause in this Court. 
It is now before the Court on a motion by the relator for 
the entry of a peremptory writ notwithstanding the return 
heretofore filed by the respondents.

The cause was initiated by the relator on May 30, 1949, 
when he filed a petition for a writ of mandamus to require 
the members of the State Board of Control to admit him 
to the College of Law of the University of Florida for 
attendance at a summer session of the first-year law class 
to begin in the summer of 1949. In due course the members 
of the Board of Control filed their return to the alternative 
writ issued in the cause, and, on April 13, 1950, the relator 
filed his motion for a peremptory writ notwithstanding the 
return.
[fol. 50] Upon due consideration of the issues raised by 
the pleadings, the Court denied the motion, because the 
relator had not shown himself entitled, under the pleadings, 
to the relief sought, in that (1) he did not have pending, 
at the time he filed his motion, an application for admission 
to a current or future first-year law class at any state main­



48

tained institution of higher learning; the application 
formerly submitted by him being only for admission to the 
first-year class of the College of Law of the University of 
Florida for attendance at the 1949 summer session; and 
(2), assuming the regulations of the Board of Control re­
quiring all applicants for admission to keep their applica­
tions current to be an unreasonable regulation, it was plain 
from the facts alleged in the return filed by the Board of 
Control, and admitted by the relator’s motion to be true, 
that the State of Florida, acting through the Board of 
Control, had established a school of law at the Florida 
Agricultural and Mechanical College, which is a state insti­
tution maintained exclusively for negroes, to which the 
Board was ready to admit the relator, provided he made 
his application for admission within the time allowed for 
students to apply for admission to a course in law at a tax- 
supported law school in Florida; that the Board of Control 
was prepared to offer to the relator “ facilities for legal edu­
cation at a negro college which [were] substantially equal to 
those offered within the state at any tax-supported institu­
tion of higher learning whose enrollment [under the Florida 
Constitution] is restricted to white students;” and that the 
Board stood ready “ to furnish law instruction, temporarily, 
at the state university maintained exclusively for white 
students, in the event adequate facilities for teaching the 
course [were] not actually and physically available at the 
state law school established for negroes at the time of re­
lator’s application and enrollment.” See State ex rel. 
Hawkins v. Board of Control, Florida Reports, 47 So. 2d 60.

In the opinion handed down by the Court, the issues 
between the parties were decided as a matter of pleading 
[fob 51] and not upon the basis of facts determined after 
the submission of proofs. But because of the public im­
portance of the questions presented, the Court, in the in­
terest of justice, did not enter a final judgment quashing 
the alternative writ and dismissing the cause (as it could 
have done under well-established rules of pleading and 
procedure), but left the matter open in order to accord to 
the relator the privilege, should he see fit to avail himself 
of it, of renewing his application for admission to a tax- 
supported law school and then of proving by competent 
evidence, if he could produce such proof, that the allegations



49

of the return, which as a matter, of pleading he had admitted 
to be true, were not true as a matter of fact; in that the 
facilities offered at the Florida Agricultural and Mechan­
ical College did not, in truth, afford him the equal protection 
of the law guaranteed by the Fourteenth Amendment to the 
Federal Constitution.

That such was this Court’s purpose in entering the inter­
locutory order should be plain to anyone from even a casual 
reading of the opinion, for the opinion concludes: “ Due 
to the nature of the issues arising out of the pleadings, it is 
our conclusion that the entry of a final order herein should 
be withheld and the jurisdiction of the cause retained until 
it be shown to the satisfaction of this Court either that the 
Board of Control has furnished, or has failed to furnish, to 
the relator, in accordance with the principles stated in this 
opinion, and after his due application for enrollment, such 
opportunities and facilities for pursuing his desired course 
of study as are substantially equal to those afforded all 
other students duly enrolled in the same or a like course of 
study at any of the tax-supported institutions of higher 
learning within the State wherein such course is offered.

“ Either party to this cause may apply in this proceeding 
for the entry of an appropriate order finally disposing of 
the case, after due and regular application for enrollment 
has been made by the relator and such opportunities and 
facilities have or have not been made available to him in 
such a tax-supported institution of higher learning.”
[fol. 52] Despite this plain wording of the opinion and 
order, the relator, on May 16, 1951, without submitting, 
or offering to submit, proofs on the issue of substantially 
equal opportunity, filed a second motion for the entry of a 
peremptory writ the return of the Board of Control not­
withstanding. On June 15, 1951, the Court denied the mo­
tion “ without prejudice to the right of the relator to move 
for the entry of a peremptory writ when he is able to show 
to the satisfaction of the Court that he has brought himself 
within the principles enunciated in State ex rel. Hawkins v. 
Board of Control,” Florida Reports, 47 So. 2d 608. For 
the report of this latter decision see State ex rel. Hawkins 
v. Board of Control, Florida Reports, 53 So. 2d 116.

Again, on June 7, 1952, and without submitting, or offer­
ing to submit, evidence designed to show that the facilities



50

offered at the Florida Agricultural and Mechanical College 
did not accord with the guarantees to which he was entitled 
under the Federal Constitution, the relator filed a third 
motion for peremptory writ the return of the Board of 
Control notwithstanding. In the motion the relator alleged, 
in part, that “ since the rendition of the Court’s initial 
opinion in the case of State ex rel. Hawkins v. Board of 
Control of Florida, et ah, 47 So. 2d 608 et seq., the Relator 
has reapplied and made due and regular reapplication for 
enrollment and admission to the School of Law at the Uni­
versity of Florida and has complied with all requirements 
necessary for enrollment and admission at said institution 
to no avail . . . that the judgment heretofore rendered 
in this said cause is a nisi order and interlocutory in its 
nature and not an appealable judgment. That the Relator 
desires to take an appeal therefrom but is precluded from 
so doing unless this Court enters a Final Judgment and to 
that end the Relator stands on Ms pleadings as filed herein 
. . . and . . . moves . . . for the issuance of a Per­
emptory Writ of Mandamus and that final judgment be 
entered in the above entitled cause.” (Italics supplied) 

The cause is now before the Court for a ruling on the 
motion.
[fol. 53] We take judicial notice, from the general appro­
priation statute of 1951 for the years 1951-53, from the fiscal 
records of the State Comptroller, and from the official 
minutes of the State Board of Control (if, indeed, such facts 
are not plainly apparent from the pleadings), that there 
is in operation at the Florida Agricultural and Mechanical 
College a duly established and tax-supported law school 
maintained exclusively for negroes, at which are offered law 
courses similar in content and quality to those offered at 
the College of Law of the University of Florida, an institu­
tion maintained exclusively for white students; and that 
said law school is not merely an “ organization on paper” , 
as has heretofore been contended by the relator, but is in 
full operation and has classrooms, a law library, a law 
faculty, and appropriations of public moneys which appear 
to be sufficient adequately to maintain the law school and 
to offer legal instruction to such negro students as are 
presently enrolled there or who may be reasonably expected 
to enroll there in the future.



51

It is apparent from the motion filed in the cause that the 
relator does not desire to controvert these facts of which 
we take judicial notice, or to raise any issue as to whether 
said facilities for instruction will afford him an opportunity 
to secure a legal education substantially equal to that 
presently available to white citizens of Florida who have 
the necessary educational qualifications for admission to 
a tax-supported law school. That such is his position is 
made plain by the fact that, as shown by his several motions, 
the relator has persistently refused to apply for admission 
to the Law School of the Florida Agricultural and Mechan­
ical College, as permitted by the interlocutory order here­
tofore entered in this cause, but has applied only to the 
University of Florida—an institution of higher learning 
which, under the Florida Constitution, is open only to white 
students so long as substantially equal opportunities and 
facilities are afforded elsewhere in the State to negro citi­
zens; and that having been refused admission to the Uni­
versity of Florida Law School, he has made his third 
demand for a peremptory writ requiring him admission to 
the University of Florida, without offering to submit proofs 
[fol. 54] on the vital issues, and has coupled the demand 
with the averment that he ‘ ‘ stands on his pleadings as filed ’ ’ 
and that a peremptory writ of mandamus should be entered 
thereon.

Presenting the demand for a peremptory writ on this 
showing can mean but one thing: that the relator intends 
to stand on the contention that in order to receive the full 
political rights guaranteed him by the Federal Constitution 
he must be admitted to the University of Florida Law 
School, maintained, under the Constitution of Florida, ex­
clusively for citizens of the white race, even though there 
is in existence in the State a tax-supported law school which 
is maintained exclusively for negroes and which, on the face 
of this record, we must assume will afford to him oppor­
tunities and facilities which are substantially equal to those 
to be found at the University of Florida. This is but 
another way of contending that in order for there to be 
equality of treatment accorded a citizen, in respect to tax 
supported facilities, there must likewise be complete iden­
tity of treatment, or else the requirements of the Federal 
Constitution will not be satisfied.



52

This contention is not sound. While the Fourteenth 
Amendment to the Federal Constitution requires that sub­
stantially equal opportunities and privileges shall be af­
forded every citizen regardless of race or color, the Su­
preme Court of the United States has held by an unbroken 
line of decisions beginning with Plessy v. Ferguson, 163 
U. S. 537, 16 S. Ct. 1138, 41 L. Ed. 256, and continuing to 
the present day, that equality of treatment need not mean 
identity of treatment, with respect to a tax-supported 
facility. See Cumming v. Countv Board of Education, 175 
U. S. 528, 20 S. Ct. 197, 44 L. Ed. 262; McCabe v. A. T. & 
S. F. B. Co., 235 U. S. 151, 35 S. Ct. 69, 59 L. Ed. 169; Gong 
Lum v. Bice, 275 U. S. 78, 48 S. Ct. 91, 72 L. Ed. 172; Mis­
souri ex rel. Gaines v. Canada, 305 U. S. 337, 59 S. Ct. 232, 
83 L. Ed. 208; Sipuel v. Oklahoma Board of Begents, 332 
U. S. 631, 68 S. Ct. 299, 92 L. Ed. 247. Compare Sweatt v. 
Painter, 339 U. S. 629, 70 S. Ct. 848, 94 L. Ed. 1114; Mc- 
Laurin v. Oklahoma State Begents for Higher Ed., 339 
U. S. 637, 70 S. Ct. 851, 94 L. Ed. 1149.
[fols. 55-56] Under the issues as framed and presented, 
it is our conclusion that the relator has not shown himself 
to be entitled to a peremptory writ and hence that his mo­
tion must be denied; that the alternative writ heretofore 
issued must be quashed; and that the cause must be dis­
missed at the cost of the relator.

It is so ordered.
Terrell, Thomas, Hobson, Boberts and Mathews, J. J., 

and Hooker, Associate Justice, Concur.

[fol. 57] In t h e  S u pr e m e , C ourt op F lorida 

[Title omitted]
M otion— Filed May 12, 1952

Come now the Belators, by their undersigned attorney, 
and direct the Clerk to certify the entire record respectively 
in the above styled cause, to wit:

1. Petition for Alternative Writ of Mandamus.
2. Order Granting Petition for Alternative Whit of 

Mandamus.



53

3. Alternative Writ of Mandamus.
4. Respondents Motion to Quash.
5. The Order Denying Respondents Motion to Quash.
6. Answer of Respondents.

[fol. 58] 7. Relators Motion for Peremptory Writ.
8. Opinion of the Court, Aug. 1, 1950.
9. Relators Motion for Peremptory Writ.
10. Opinion of the Court, June 15, 1951.
11. Relators Motion Directing Certification of Record.
12. Relators Motion for Peremptory Writ and Final 

Judgment.

(S.) H. E. Hill, 525V2 Second A venue, Daytona 
Beach, Florida, Attorney for Relators.

Certificate of Service omitted in printing.

[fol. 59] Clerk’s Certificate to fore going transcript 
omitted in printing.

(3673)

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