McLaurin v. Oklahoma State Regents for Higher Education Memorandum for the U.S. as Amicus Curiae

    Nos. 34 and 44

J n  Ihe Jlttjn m * (Snort of the 'Suited plates
October Term, 1949

G. \Y. M cL aurin, appellant

V. .

Oklahoma State R egents for H igher E duca­
tion, B oard of R egents of University of 
Oklahoma et al.

APPEAL FROM THE DISTRICT COURT OF THE UNITED 
STATES FOR THE WESTERN DISTRICT OF OKLAHOMA

H eman Marion Sweatt, petitioner

v.
Theophilis Shickel P ainter et al.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF 
THE STATE OF TEXAS

MEMORANDUM FOR THE UNITED STATES AS 
AMICUS CURIAE



Jtttfe Jliijiw 4  iltVimki §$Mm
October Term, 1949

No. 34

GK W . McL aurin, appellant

V.

Oklahoma State Regents for H igher Educa­
tion, B oard of Regents of U niversity of 
Oklahoma, et al.

No. 44

H em an Marion Sweatt, petitioner 
v.

Theophilis Shicicel P ainter et al.

MEMORANDUM FOR THE UNITED STATES AS 
AMICUS CURIAE

These cases, together with No. 25, Henderson 
v. United States, have great importance to the 
Government and the people of the United 
States. They are significant because they test 
the vitality and strength of the democratic ideals

(i)871386— 50



2

to which the United States is dedicated. The 
cases at bar do not present isolated instances 
of racial discrimination by private individuals. 
On the contrary, the asserted discriminations re­
late to practices systematically engaged in by the 
States themselves, and come before this Court 
bearing the endorsement of the laws of these 
States. The decisions in these cases may thus 
have large influence in determining whether the 
foundations of our society shall continue to be 
undermined by the existence and acceptance of 
racial discriminations having the sanction of law.

McLaurin and Sweatt are Negroes. For that 
reason alone they have been subjected under the 
laws of the States in which they live to various 
educational restrictions not imposed on white 
students. McLaurin, a graduate student at the 
University of Oklahoma preparing for a doctor’s 
degree in education, is required to sit at a spe­
cial desk set aside for him in the doorway of the 
classroom; he may use the library, but only if 
he takes his books to a designated desk on the 
mezzanine floor; he may eat in the school cafe­
teria, where he is served the same food as other 
students, but only at a different time and at a 
table specially set apart for his use. Sweatt has 
been excluded from the University of Texas Law 
School, which is reserved for white students. In­
stead, he has been offered the privilege of apply­
ing for admission to a new law school, for Negroes 
only, which the State has undertaken to establish.



3

The Fourteenth Amendment, which became 
part of the Constitution in 1868, forbids any 
State to “ deny to any person within its juris­
diction the equal protection of the laws.”  In  an 
impressive series of decisions, extending over a 
period of more than three-quarters of a century, 
this Court (with the principal exception of 
Plessy v. Ferguson, 163 U. S. 537) has construed 
the Amendment liberally so as to carry out its 
purposes, namely, to establish complete equality 
in the enjoyment of fundamental human rights 
and to secure those rights against governmental 
discriminations based on race or color. Strauder 
v. West Virginia, 100 IT. S. 303, decided in 1880, 
was the first case in which the Court was called 
upon to define the scope of the Amendment as 
applied to distinctions based on race or color. 
The interpretation of the Fourteenth Amendment 
made in that case (pp. 306-308) is especially 
significant, not merely because of its comprehen­
sive nature, but because it was written by a Court 
whose members lived during the period when the 
Amendment was enacted:

This [the Fourteenth Amendment]' is 
one of a series of constitutional provisions 
having a common purpose; namely, secur­
ing to a race recently emancipated, a race 
that through many generations had been 
held in slavery, all the civil rights that the 
superior race enjoy. The true spirit and



4

meaning of the amendments, as we said in 
the Slaughter-House Gases (16 Wall. 36), 
cannot be understood without keeping in 
view the history of the times when they 
were adopted, and the general objects they 
plainly sought to accomplish. At the time 
when they were incorporated into the Con­
stitution, it required little knowledge of 
human nature to anticipate that those who 
had long been regarded as an inferior and 
subject race would, when suddenly raised 
to the rank of citizenship, be looked upon 
with jealousy and positive dislike, and that 
State laws might he enacted or enforced to 
perpetuate the distinctions that had before 
existed. Discriminations against them had 
been habitual. It is well known that in 
some States laws making such discrimina­
tions then existed, and others might well be 
expected. The colored race, as a race, was 
abject and ignorant, and in that condition 
was unfitted to command the respect of 
those who had superior intelligence. Their 
training had left them mere children, and 
as such they needed the protection which 
a wise government extends to those who are 
unable to protect themselves. They espe­
cially needed protection against unfriendly 
action in the States where they were resi­
dent. It was in view of these considera­
tions the Fourteenth Amendment was 
framed and adopted. It was designed to 
assure to the colored race the enjoyment of 
all the civil rights that under the law are



5

enjoyed by white persons, and to give to 
that race the protection of the general 
government, in that enjoyment, whenever 
it should be denied by the States. It not 
only gave citizenship and the privileges of 
citizenship to persons of color, but it 
denied to any State the power to withhold 
from them the equal protection of the laws, 
and authorized Congress to enforce its pro­
visions by appropriate legislation. * * *

I f  this is the spirit and meaning of the 
amendment, whether it means more or not, 
it is to be construed liberally, to carry out 
the purposes of its framers. It ordains 
that no State shall make or enforce any 
laws which shall abridge the privileges or 
immunities of citizens of the United States 
(evidently referring to the newly made 
citizens, who, being citizens of the United 
States, are declared to be also citizens of 
the State in which they reside). It ordains 
that no State shall deprive any person of 
life, liberty, or property, without due 
process of law, or deny to any person 
within its jurisdiction the equal protection 
of the laws. What is this but declaring 
that the law in the States shall be the same 
for the black as for the white; that all per­
sons, whether colored or white, shall stand 
equal before the laws of the States, and, in 
regard to the colored race, for whose pro­
tection the amendment was primarily de­
signed, that no discrimination shall be 
made against them by law because of their



6

color? The words of the amendment, it is 
true, are prohibitory, but they contain a 
necessary implication of a positive immu­
nity, of right, most valuable to the colored 
race,—the right to exemption from un­
friendly legislation against them distinc­
tively as colored-exem ption from legal 
discriminations, implying inferiority in civil 
society, lessening the security of their en­
joyment of the rights which others enjoy, 
and discriminations which are steps to­
wards reducing them to the condition of a 
subject race.

Strauder v. W est Virginia was soon followed 
by a number of other cases in which the Court 
continued to give broad effect to the constitu­
tional principle that all men stand equal and alike 
before the law, and that legal distinctions drawn 
solely on the basis of race or color are incom­
patible with the guarantee of equal protection of 
the laws. E. g., Virginia v. Rives, 100 U. S. 313 
(1880) ; Ex parte Virginia, 100 U. S. 339 (1880) ; 
'Nxeal v. Delaware, 103 U. S. 370 (1881) ; Bush v. 
Kentucky, 107 U. S. 110 (1883). And in a line 
of decisions extending to the present time, the 
Court has applied this broad doctrine in a great 
variety of factual contexts. To cite only some 
of the more familiar cases, and the dates when 
they were decided, is to show that equality is not 
an abstract concept but a living principle firmly 
rooted in our basic law: Yick Wo v. Hopkins, 
118 U. S. 356 (1886) ; McCabe v. Atchison, T. '&



7

S. F. By. Co., 235 IT. S. 151, 161 (1914) ; Truax v. 
Raich, 239 IT. S. 33 (1915) ; Buchanan v. Warley, 
245 IT. S. 60 (1917) ; Nixon v. Herndon, 273 IT. S. 
536 (1927); Nixon v. Condon, 286 IT. S. 73 
(1932) ; Missouri ex rel. Gaines v. Canada, 305 
IT. S. 337 (1938) ; Mitchell v. United States, 313 
U. S. 80, 94-97 (1941); Hill v. Texas, 316 IT. S. 
400 (1942) ; Sipuel v. Board of Regents, 332 IT. S. 
631 (1948); Shelley v. Kraemer, 334 IT. S. 1, and 
Hurd v. Hodge, 334 IT. S. 24 (1948) ; TakahasM 
y . Fish and Game Commission, 334 IT. S. 410 
(1948).

In Shelley y . Kraemer, which outlawed judicial 
enforcement of racial restrictive covenants on 
real property, the Court again took occasion to 
reaffirm the broad construction made in Strauder 
Y. West Virginia. Mr. Chief Justice Vinson 
wrote for the Court (334 IT. S. at 23) :

The historical context in which the 
Fourteenth Amendment became a part of 
the Constitution should not be forgotten. 
Whatever else the framers sought to 
achieve, it is clear that the matter of pri­
mary concern was the establishment of 
equality in the enjoyment of basic civil 
and political rights and the preservation 
of those rights from discriminatory action 
on the part of the States based on consider­
ations of race or color. Seventy-five years 
ago this Court announced that the provi­
sions of the Amendment are to be con­
strued with this fundamental purpose in 
mind.



8

With specific reference to the field of education, 
it has been held that, while a State is not obliged 
to furnish higher education to any of its citizens, 
if it offers such education to its white residents, 
the Constitution requires that the same privilege 
be extended on equal terms to its colored resi­
dents. Missouri ex rel. Gaines v. Canada, 305 
U. S. 337; Sipuel v. Board of Regents, 332 IT. S. 
631. The constitutional requirement is that of 
equality, not merely in one sense of the word but 
in every sense. Nothing in the Fourteenth 
Amendment, or in the cases decided under it, 
supports the notion that facilities need be equal 
only in a physical sense.

In the cases at bar the facilities of the Uni­
versity of Oklahoma have been made available to 
McLaurin, but only under conditions in which the 
spirit of free intellectual inquiry plainly can 
not long survive. As to Sweatt, the briefs sub­
mitted by him and the other amici curiae amply 
demonstrate that the institution which the State 
has established for the purpose of providing legal 
education for its colored residents falls far short 
of being the equal of the Law School of the Uni­
versity of Texas. The argument is made, how­
ever, that the State cannot overnight establish 
for its Negro citizens a law school comparable in 
all respects to that now available to its white citi­
zens, and that the Constitution is satisfied if the 
State in good faith undertakes to provide facili­
ties which will eventually be “ equal”  to those of



9

the University of Texas. But it does not answer 
Sweatt ’s present claim to say that, at some un­
specified time in the future, colored persons as 
a group will be treated equally. The right to 
equal legal education which Sweatt asserts is a 
personal one, and the State can discharge its 
obligation to him only by providing him such edu­
cation “ as soon as it does for applicants of any 
other group.”  Sipnel v. Board of Regents, 332 
U. S. 631, 633. The Constitution cannot he con­
strued to require Sweatt to postpone or forego 
his legal education until the State of Texas estab­
lishes an “ equal”  law school for colored students. 
I f  it were so construed, his constitutional right 
would have neither meaning nor value.

Moreover, the fact of racial segregation is itself 
a manifestation of inequality and discrimination. 
The argument to the contrary is derived prin­
cipally from Plessy v. Ferguson, 163 U. S. 537, 
which, almost three decades after the Fourteenth 
Amendment was adopted, read into it for the first 
time an implied limitation that enforced racial 
segregation does not violate the Amendment so 
long as the separate facilities are “ equal.”  In 
the brief for the United States in the Henderson 
case, No. 25, we have argued that the “ separate 
but equal”  theory of Plessy v. Ferguson is wrong 
as a matter of law, history, and policy. The 
United States in these cases again urges the Court 
to repudiate the “ separate but equal”  doctrine 
as an unwarranted deviation from the principle



10

of equality under law which the Fourteenth 
Amendment explicitly incorporated in the funda­
mental charter of this country.

Under the Constitution every agency of govern­
ment, federal and state, must treat our people as 
Americans, and not as members of particular 
groups divided according to race, color, religion, 
or national ancestry. All citizens stand equal 
and alike in relation to their government, and no 
distinctions can be made among them because 
of race or color or other irrelevant factors. The 
color of a man’s skin has no constitutional signifi­
cance. I f  the Constitution is construed to permit 
the enforced segregation of Negroes, there would 
be no constitutional barrier against singling out 
other groups in the community and subjecting 
them to the same kind of discrimination.1

4‘ Separate but equal”  is sometimes described 
as an “ ancient”  doctrine of constitutional law. 
But it is derived not from the Constitution but

1 In recommending the elimination o f segregation, based 
on race, color, creed, or national origin, from American 
life, the President’s Committee on Civil Eights stated:

“ The separate but equal doctrine has failed in three im­
portant respects. First, it is inconsistent with the funda­
mental equalitarianism of the American way o f life in that 
it marks groups with the brand o f inferior status. Sec­
ondly, where it has been followed, the results have been 
separate and unequal facilities for minority peoples. F i­
nally, it has kept people apart despite incontrovertible evi­
dence that an environment favorable to civil rights is 
fostered whenever groups are permitted to live and work 
together. There is no adequate defense of segregation.”
( To Secure These Rights, p. 168).



11

from a judicial expression which did not make 
its appearance in the reports of this Court until 
1896, and which is irreconcilable with the body 
of precedents which preceded and followed it. 
Here, therefore, as in Helvering v. Bollock, 309 
U. S. 106, 122, the “ real problem is whether a 
principle shall prevail over its later misapplica­
tions.”  The Bollock opinion gives the clear 
answer. To alter slightly the Court’s language 
in that case: “ Surely we are not bound by reason 
or by the considerations that underlie stare decisis 
to persevere in distinctions taken in the applica­
tion of [the Fourteenth Amendment] which, on 
further examination, appear consonant neither 
with the purposes of the [Amendment] nor with 
this Court’s own conception of it.”  (Ibid.) 2

The subordinate position of Negroes in this 
country has been described as the greatest un­
solved task for American democracy. The racial 
discriminations typified by these cases represent 
a challenge to the sincerity of our profession of 
the democratic faith. The President has stated: 
“ I f  we wish to inspire the peoples of the world 
whose freedom is in jeopardy, if we wish to re­
store hope to those who have already lost their

2 In Passenger Cases, 7 How. 283, 470, Chief Justice Taney 
agreed “ it be regarded hereafter as the law o f this court, 
that its opinion upon the construction o f the Constitution is 
always open to discussion when it is supposed to have been 
founded in error, and that its judicial authority should here­
after depend altogether on the force of the reasoning by 
which it is supported.”



12

civil liberties, if we wish to fulfill the promise that 
is ours, we must correct the remaining imperfec­
tions in our practice of democracy. We know 
the way. We need only the will.” 3

The Court is here asked to place the seal of 
constitutional approval upon an undisguised 
species of racial discrimination. I f  the imprima­
tur of constitutionality should be put on such a 
denial of equality, one would expect the foes of 
democracy to exploit such an action for their own 
purposes. The ideals embodied in our Bill of 
Bights would be ridiculed as empty words, devoid 
of any real substance. The lag between what 
Americans profess and what we practice would 
be used to support the charges of hypocrisy and 
the decadence of democratic society.4 The words 
of Mr. Justice Harlan, dissenting in Plessy v. 
Ferguson, 163 U. S. 537, 562, are as pertinent 
today as when they were written more than fifty 
years ago:

We boast of the freedom enjoyed by our 
people above all other peoples. But it is 
difficult to reconcile that boast with a state 
of the law which, practically, puts the 
brand of servitude and degradation upon a

3 Message to the Congress, February 2, 1948, II. Doc. Ao. 
516, 80th Cong., 2d sess., p. 7.

4 Concrete illustrations of the extent to which the exist­
ence o f racial discrimination in this country embarrasses 
the United States in the conduct o f foreign affairs are set 
forth in the Government’s brief in the Henderson case, pp. 
60-63.



13

large class of our fellow-citizens, our equals 
before the law. The thin disguise of 
“  equal”  accommodations * * * will
not mislead any one, nor atone for the 
wrong this day done.

It is in the context of a world in which freedom 
and equality must become living realities, if the 
democratic way of life is to survive, that the 
issues in these cases should be viewed. In these 
times, when even the foundations of our free insti­
tutions are not altogether secure, it is especially 
important that it again be unequivocally affirmed 
that the Constitution of the United States, like the 
Declaration of Independence and the other great 
state papers in American history, places no limi­
tation, express or implied, on the principle of the 
equality of all men before the law. The proposi­
tion that all men are created equal is not mere 
rhetoric. It summarizes a rule of law embodied 
in the Constitution, the supreme law of the land, 
and thus is binding on the Federal and State 
governments and all their officials. See Truax v. 
Corrigan, 257 U. S. 312, 332; Hill v. Texas, 316 
U. S. 400, 406; Hirabayashi v. United States, 320 
U. S. 81, 100; Civil Rights Act of May 31, 1870, 
c. 114, § 16, 16 Stat. 144, 8 U. S. C. 41.

Disregard of constitutional rights does not raise 
issues merely of “ civil liberties.”  It involves con­
siderations which go to the essence of law enforce­
ment in a democracy. A  basic postulate of 
democratic government is that a valid law must be



14

enforced and obeyed, even by those who disagree 
with it or against whose firmly held convictions 
the law may run counter. Citizens and officials 
cannot be relieved of their obligation to respect 
the law, simply because they regard it as unwise or 
wrong. Nor can personal beliefs or prejudices 
justify failure to respect the legal rights of others. 
The right of all Americans to equal treatment under 
law is specifically guaranteed by the Constitution 
and laws of the United States. Like other legal 
rights, it must be recognized and enforced by all 
persons and by every instrumentality of govern­
ments. To countenance disregard of such right is 
to sanction disrespect for law and thereby weaken 
the fabric of our society.

Respectfully submitted.
P hilip B. P erlman,

Solicitor General.
P hilip Elman,

Special Assistant to the Attorney General.

F ebruary 1950.

U. S . GOVERNMENT PRINTING OFFICE: 1950