Sweatt v. Painter Petition and Brief in Support of Petition for Writ of Certiorari

    IN' THE

Supreme Court of the United States
October Term, 1948

No.

HEMAN MARION SWEATT,

vs.
Petitioner,

THEOPHILIS SHICKEL PAINTER, ET AL.

PETITION AND BRIEF IN SUPPORT OF PETITION FOR 
W RIT OF CERTIORARI TO THE SUPREME COURT OF 

THE STATE OF TEXAS

W . J. D urham ,
W illiam  H . H astie,
W illiam  R . M ing , J r ., 
J ames M. N abrit, J r ., 
T hurgood M arshall,

Attorneys for Petitioner.
R obert L. Carter,
E. B. B u n kley , Jr.,
H arry B ellinger,
U. S. T ate,

Of Counsel.



TABLE OF CONTENTS

PAGE

Petition por W rit op Certiorari

Part One— Summary Statement of the Matter In­
volved __________________________________    2
I. Statement of the Case ________________________  2

First Hearing -___________________________  3
Second H earing___________________________  3
Hearing on the Merits ___________________  3

II. Summary of Testimony ____________________  5
A. The Two Law Schools __________________  6

Physical Plant _________________________ 7
Library ____________________________    7
Faculty _______________________________  7
Student Body _________________________ 7

B. The Unreasonableness of C o m p u l s o r y
Racial Segregation in Public Legal Edu­
cation ____________________________________ 9

C. Inequalities Inherent in Segregated School
Facilities ________________________________  11

P art Two— Opinion of the Court B elow _____________ 12
Part T hree—Jurisdiction __________________________ 13
Part F our— Question Presented ___________________  13
Part F ive—Reasons Relied Upon for Allowance of 

the Writ _________________________________________  13
Conclusion _________________________________________  14



11
PAGE

B rief in  S upport T hereof

Opinion of the Court Below _____________________  15

Jurisdiction __    15

Statement of the Case____________________________  16

Errors Belied U pon______________________________  16

A rgument

I. The question whether a state which undertakes 
to provide legal education for any of its citi­
zens can satisfy the requirements of the equal 
protection clause of the Fourteenth Amend­
ment by establishing a law school for Negroes 
separate from the law school it provides for all 
other persons is of great public importance and 
should be decided by this Court in this case 17

II. The inconsistency between the judicial approval 
of laws imposing racial distinctions in Plessy 
v. Ferguson and the judicial disapproval of 
similar distinctions and classifications in more 
recent decisions should lead this Court to re­
view and disavow the doctrine of Plessy v. 
Ferguson___________________________________  23

III. This Court should review and reverse the judg­
ment below to prevent the several states from 
being free to restrict Negroes to public edu­
cational facilities clearly inferior to those pro­
vided for all other persons similarly situated 
through the device of arbitrary judicial deci­
sion that such discriminatory action provides
“ substantial equality”  _____________________  28

Co n c l u sio n_______________ _______________________  33



I ll

Table of Cases
PAGE

Atchison Topeka & Santa Fe R. R. Co. v. Vosburg, 238 
IT. S. 5 6 ________________________________________  27

Berea College v. Kentucky, 211 U. S. 45______________  26
Bluford v. Canada, 32 F. Supp. 707__________________  29
Bob-Lo Excursion Co. v. Michigan, 333 U. S. 28_______ 26
Buchanan v. Warley, 245 U. S. 60____________________  25

Colgate v. Harvey, 296 U. S. 404____________________ 14, 27
Connolly v. Union Sewer Pipe Co., 184 U. S. 540______ 27
Cory v. Carter, 48 Ind. 337___________________________ 24
Cotting v. Kansas City Stock Yards Co., 183 U. S. 79__ 27
Cummings v. County Board of Education, 175 U. S.

528 ___________________________________________ 23,24

Dawson v. Lee, 83 Ky. 49___________________________  24
I

Ex Parte Virginia, 100 U. S. 339______-_______________ 26

Fisher v. Hurst, 333 U. S. 147_____________________ 25, 30

Gong Lum v. Rice, 275 U. S. 78_...._______________ 23, 24, 25
Gulf Colorado & Sante Fe R. Co. v. Ellis, 165 U. S. 150.. 27

Hall v. DeCuir, 95 U. S. 485________________________ 23, 26
Hartford Steam Boiler Insurance and Inspection Co. v. 

Harrison, 301 U. S. 459___________________________ 27
Hill v. Texas, 316 U. S. 400__________________________  25

Johnson v. Board of Trustees (File No. 625, U. S. Dist. 
Court for the Eastern District of Kentucky)_______ 30



IV
PAGE

Lehew v. Brnmmell, 103 Mo. 546________ 1_______ ___ 24
Louisiana ex rel. Hatfield v. Louisiana State University 

(File 25,550, State Court for the 19th Judicial Dis­
trict) ----------------------------------------------------------------- 30

Louisville Gas & Electric Company v. Cohen, 277 U. S.
32-------------------------------------------------- --------------------  27

Mayflower Farms v. Ten Eyck, 297 U. S. 266__________  27
McCabe v. Atchison Topeka & Santa Fe R. Co., 235 

U. S. 151 ______________________________________ 23, 26
McLaurin v. Oklahoma State Regents, et al., No. 614, 

October Term, 1948______________________________  30
Missouri ex rel. Gaines v. Canada, 305 U. S. 337___23, 25, 29
Mitchell v. United States, 313 U. S. 80________________  26
Morgan v. Virginia, 328 U. S. 373____________________  26

Ovama v. California, 332 U. S. 633__________________ 14, 25

Pearson v. Murray, 169 Md. 478 ______________________ 30
People v. Gallagher, 93 N. Y. 438______________________ 24
Plessy v. Ferguson, 163 U. S. 537______  14, 23, 24, 25, 28, 29
Powers Mfg. Co. v. Saunders, 274 U. S. 490__________  27

Quaker City Cab Co. v. Pennsylvania, 277 U. S. 389___ 27

Royster Guano Co. v. Virginia, 253 U. S. 412__________  27
Roberts v. Boston, 5 Cush. (Mass.) 198______________ 24

Shelley v. Kraemer. 334 U. S. 1 ____________________ 14. 25
Sipuel v. Board of Regents. 332 U. S. 631______2. 23. 25.30
Skinner v. Oklahoma. 316 U. S. 535 __________________ 27
Smith v. C&hoon. 2S3 U. S. 553____________ __________ 27



V

Southern Ry. Co. v. Greene, 216 U. S. 400____________  27
State, ex rel. Michael v. Whitham, 179 Tenn. 250 ______ 29
State, Games v. McCann, 21 Ohio St. 210____________  24
Strauder v. West Virginia, 100 U. S. 303______________  25

Takahashi v. Fish & Game Commission, 332 U. S.
410___________________________________________ 14, 25

Truax v. Corrigan, 257 U. S. 312____________________  27

Truax v. Raich, 239 U. S. 3 3 __________________ ’_____ 26

Virginia v. Rieves, 100 U. S. 313_____________________  26

Ward v. Flood, 48 Cal. 36____________________________ 24
Wrighten v. Board of Trustees, 72 F. Supp. 948_____24, 29
Yick Wo v. Hopkins, 118 U. S. 356 __________________  25

Other Authorities

Argument of Charles Sumner, Esq., Against the Consti­
tutionality of Colored Schools in the case of Sarah C. 
Roberts v. Boston, 1849___________________________  20

Ballantine, The Place in Legal Education of Evening 
and Correspondence Law Schools, 4 Am. Law School 
Rev. 369 (1918) _______ :_________________________ 21

Boyer, Smaller Law Schools, Factors Affecting Their 
Methods and Objectives, 20 Oregon Law Rev. 281 
(1941) _________________________________________  21

“ Higher Education for American Democracy,”  A Re­
port of the President’s Commission on Higher Edu­
cation, U. S. Government Printing Office, Washing­
ton, December, 1947 _____________________________  19

Holmes, “ The Use of Law Schools”  in Collected Legal 
Papers (1920)___________________________________  21

PAGE



PAGE

Journal of Negro Education (1945), Vol. XIV, Fall 
Number ________________________________________

McCormick, The Place and Future of the State Univer­
sity Law School, 24 N. C. L. Rev. 441____________ 21,

Otto Klineberg, Negro Intelligence and Selective Migra­
tion (N. Y., 1935) _______________________________

Peterson & L. H. Lanier, ‘ ‘ Studies on the Comparative 
Abilities of Whites and Negroes,”  Mental Measure­
ment Monograph, 1929 ___________________________

Report of Board of Officers on Utilization of Negro 
Manpower in the Post-War Army (February, 1946)

Simpson, “ The Function of a University Law School,”  
49 Harv. L. Rev. 1068 __________________________20,

Sixteenth Census of the United States, Vol. I ll, Part 
IV (1940) ______________________ _______________

Stone, “ The Public Influence of the Bar,”  48 Harv. L. 
Rev. 1 __________________________________________

The Black and White of Rejections for Military Service, 
Montgomery, Ala., American Teachers Association, 
1944 __________________________________________ 18,

“ To Secure These Rights,”  The Report of the Presi­
dent’s Committee on Civil Rights, U. S. Government 
Printing Office, 1947 _____________________________

Townes, Organization and Operation of a Law School, 2 
Am. Law School Rev. 436 (1910)_________________

19

22

22

22

18

22

20

22

22

18

21



IN THE

Supreme Court of the United States
October Term, 1948

No.

H e man M arion S weatt,
Petitioner,

vs.

T heophilis S hickel  P ainter, et al.

PETITION FOR W RIT OF CERTIORARI TO THE 
SUPREME COURT OF THE STATE OF TEXAS

To the Honorable, the Chief Justice of the United States 
and the Associate Justices of the Supreme Court of the 
United States:

Petitioner respectfully prays that a writ of certiorari 
issue to review the judgment of the Supreme Court of Texas 
denying his application for writ of error to review the 
judgment of the Court of Civil Appeals which had affirmed 
the judgment of the District Court of Travis County dis­
missing petition for writ of mandamus to compel respon­
dents to admit petitioner to the University of Texas School 
of Law.



2

P A R T  O N E

SUMMARY STATEMENT OF THE MATTER  
INVOLVED

I
Statement of the Case

This case is believed to present for the first time in this 
Court a record in which the issue of the validity of a state 
constitutional or statutory provision requiring the separa­
tion of the races in professional schools is clearly raised.1 
It is the first record which contains expert testimony and 
other convincing evidence showing the lack of any reason­
able basis for racial segregation at the professional school 
level, its inherent inequality and its effect on the students, 
the school and the state.

Over a period of two years three hearings were held in 
the trial court. The first presented a situation in which the 
state excluded Negroes entirely from its state-supported 
law school facilities. The second came after the state had 
proposed to undertake the establishment of a Negro law 
school, and the third hearing took place subsequent to a 
specific tender of segregated legal training of sorts by the 
state. Throughout the three hearings, petitioner challenged 
the validity of the constitutional and statutory provisions 
of the state requiring racial segregation of students and the 
resulting exclusion of petitioner from the law school of the 
University of Texas because of his race as contravening 
the Fourteenth Amendment.

1 There are two other cases involving a similar question. Mc- 
Laurin v. Oklahoma State Regents, et al., No. 614, October Term, 
1948 is now pending before this Court on direct appeal. Sipuel v. 
Board of Regents, et al., 332 U. S. 631 was retried in the local court, 
and a record made including testimony of experts in the fields of legal 
training, anthropology and sociology. That case is now pending on 
appeal before the Supreme Court of Oklahoma.



3

F irst H earing

On May 16, 1946 petitioner filed in the 126th District 
Court of Travis County, Texas, a petition for a writ of 
mandamus alleging that he had been refused admission to 
the law school of the University of Texas solely because of 
race and color (R. 403-408). On June 17, 1946 a hearing 
was held, and on June 26th the district court entered an 
order finding that the refusal to admit petitioner was a 
denial of the equal protection of the laws for the reason 
that no provision had been made for legal training for him. 
The court, however, refused to grant the writ at that time 
and gave the respondents six months to provide a course 
of legal instruction substantially equivalent to that afforded 
at the University of Texas setting the next hearing date for 
December 17th (R. 424-426).

S econ d  H earing

At the December 17th hearing it appeared that the state 
had done no more than authorize the instruction of Negroes 
at a non-existent law school to he established at Houston 
(R. 426-432). Yet, the district court entered a final order 
dismissing the petition for a writ of mandamus on the 
ground that “ the said order of June 26, 1946 has been com­
plied with in that a law school or legal training substantially 
equivalent to that offered at the University of Texas has 
now been made available to the Relator”  (R. 433).

This judgment was appealed to the Court of Civil Ap­
peals, and on March 26,1947 the judgment of the trial court 
was set aside without opinion and the cause remanded gener­
ally for further proceedings without prejudice (R. 434-435).

H earin g  on  the M erits

On May 1, 1947 respondents filed their first amended 
original answer alleging that “ The Constitution and laws



4

of the State of Texas require equal protection of the law 
and equal educational opportunities for all qualified persons 
but provide for separate educational institutions for white 
and Negro students”  (R. 415). It was further alleged that 
the refusal to admit petitioner was therefore not arbitrary 
or in violation of the Constitution of the United States since 
“ equal opportunities were provided for relator in another 
state-supported law school”  (R. 415).

On May 8, 1947 relator filed his second supplemental 
petition pointing out that the proposed law school for 
Negroes did not meet the requirements of the equal protec­
tion clause and that the continued refusal to admit peti­
tioner to the law school of the University of Texas was in 
violation of the Fourteenth Amendment and that “ insofar 
as respondents claim to be acting under authority of the 
Constitution and laws of the State of Texas their continued 
refusal to admit the relator to the law school of the Uni­
versity of Texas is nevertheless in direct violation of the 
Fourteenth Amendment to the Constitution of the United 
States”  (R. 412). It was also alleged that “ such consti­
tutional and statutory provisions of the State of Texas as 
applied to Relator are in direct violation of the Fourteenth 
Amendment to the Constitution of the United States”  (R. 
413).2

Thereafter, respondents filed their first supplemental 
answer reaffirming their reliance upon the validity of the 
provisions of the Constitution and laws of Texas requiring 
racial segregation in public education (R. 420).

From May 12 to May 18, 1947, hearing was had and tes­
timony was taken before the district court, sitting without

_ 2 At the trial o f tins case, the responsible officials of the University 
t r Texas ~ a ;e  :r dear rSat they refused adtvissicrt to the petitioner 

7 tit; r  - and 1 - V; . - ; ■ 
at the races in rubiic education (R. 40-41. 5o. 161)'



5

a jury, and on June 17, 1947 judgment was entered for 
respondents. The judgment concluded that “ the constitu­
tional right of the State to provide equal educational op­
portunities in separate schools being well established and 
long recognized by the highest state and federal courts, and 
the facts in this case showing that Relator would be offered 
equal if not better opportunities for the study of law in such 
separate school, the petition for Writ of Mandamus should 
be denied’ ’ (R. 440). (Italics ours.)

The Court of Civil Appeals affirmed the judgment of the 
lower court on February 25, 1948 (R. 445-460). Motion for 
rehearing was filed on March 11, 1948 (R. 461-464) and was 
denied on March 11, 1948 (R. 465), with opinion appearing 
in the record at pages 460-461.

On September 29, 1948 application for writ of error to 
the Supreme Court of Texas was denied without opinion, 
and on October 27,1948 motion for rehearing was overruled 
(R„ 471).

On January 12, 1949 this Court issued an order extend­
ing time to file this petition for writ of certiorari up to and 
including March 23, 1949 (R. 472).

II

Summary of Testimony

The testimony offered by the respondents was limited 
to the question of the alleged physical equality between 
the law school at the University of Texas and the law school 
for Negroes. The respondents produced no evidence to 
justify the state’s constitutional and statutory provisions 
requiring the segregation of the races in public law schools. 
On the other hand, petitioner offered the uncontradieted 
testimony of expert witnesses showing: (1) that there is



6.

no rational basis for compulsory racial segregation in public 
education; (2) that there are no recognizable racial differ­
ences as to capacities between students of different races; 
and (3) that compulsory racial segregation in public edu­
cation is harmful to the students of all groups and the 
community. Petitioner also produced expert testimony 
showing that it is impossible for a law school student to get 
an education in a school limited to one racial group equal 
to that obtained in a law school to which all other groups 
are freely admitted. Expert testimony offered by the peti­
tioner also showed the inevitable inequalities inherent in a 

'public school system maintained on a basis of racial segre­
gation.

A

T h e  T w o  L aw  S ch ools

Although Negroes have always been excluded from the 
University of Texas because of their race or color, the State 
of Texas has never offered them “ separate but equal”  
facilities (R. 56). As Dean Pettinger, a witness.for respon­
dents who has studied educational facilities for Negro and 
white students in Texas for thirty years, stated: “ I am un­
able to think for the moment of colored institutions and 
white institutions which do have equal facilities with which 
I have been associated”  (R. 33).

When petitioner applied for a legal education the only 
law school in existence maintained by the State of Texas 
was the one at the University of Texas (R. 425).

The University of Texas has been in existence since 
the last century. The law school has been in existence for 
more than fifty years and is recognized and accredited by 
every association in the field (R. 90-91). The Negro school 
had just been opened in March, 1947 and was not ac­
credited by any agency (R. 96, 25).



7

P h ysica l P lant

The proposed Negro law school was to be set up in the 
basement3 of a building in downtown Austin consisting of 
three rooms of moderate size, one small room and toilet 
facilities (E. 36). There were no private offices for either 
the members of the faculty or the dean. The space for this 
law school had been leased for a period from March to 
August 31, 1947 at $125 a month, and the authorities were 
negotiating for a new lease after that period (E. 41). It 
was freely admitted that “ there is no fair comparison in 
monetary value”  between the two schools (E. 43). There 
was no assurance as to where the proposed law school 
would be located after August 31st, and it was not even 
certain as to what city it would be in after August 31st 
(E. 52-53).

L ibrary

While the law school at the University of Texas had a 
well-rounded library of some 65,000 volumes (E. 133), the 
proposed Negro school had only a few books, mostly case 
books for use of first-year students (E. 21-22). However, 
the students at the proposed law school for Negroes had 
access only to the law library in the state capitol directly 
across the street, a right in common with all other citizens 
of the State of Texas (E. 45). A library of approximately 
10,000 volumes had been requisitioned on February 25, 1947 
(E. 40) but was not available for use at the time of the 
opening of the Negro school on March 10 nor at the time 
of the trial of this case (E. 44). The University of Texas 
law school had a full-time, qualified and recognized law 
librarian with two assistants (E. 139). The Negro law

3 Pictures of the building of the Law School at the University of 
Texas and the basement quarters of the so-called Negro law school 
appear in the record at pages 385-387 and 389.



8

school had neither librarian nor assistant librarians (R. 
74, 80, 128).

It was admitted that the library at the state capitol, a 
typical court library and not a teaching library, was not 
equal to the one at the University of Texas, and did not 
meet the standards of the Association of American Law 
Schools (R. 134, 138, 145). It was also admitted that even 
if the requisitioned boohs were actually obtained the library 
would not then be equal to the library already in existence 
at the law school of the University of Texas (R. 151).

F acu lty

The University of Texas Law School has a faculty con­
sisting of sixteen full-time and three part-time professors 
(R. 369-371). The proposed faculty for the Negro school 
was to consist of three professors from the University of 
Texas who were to teach classes at the Negro school in 
addition to their regular schedule at the University of 
Texas (R. 59, 84, 87).4 The comparative difference in value 
between full-time and part-time law school professors was 
freely acknowledged and it was admitted that the proposed 
“ faculty”  did not meet the standards of the Association 
of American Law Schools (R. 59, 91-92).

S tu d en t B od y

There were approximately eight hundred fifty students 
at the law -ehool of the University of Texas (R. 76). From 
the record it appears that all qualified students other than 
Negroes were admitted. There were no students at the 
proposed Negro school at the date of opening nor at the 
time of the trial 3. 162 . A.though several Negroes had 
made inquiry concerning the school, none had applied for

* -i v is  use sccwr. mar :mcss ter the lean and taeoitv members 
iawtbed vert tc remain at the Unrrarsttr o f T ea s . R. 4e-N" .



9

admission (R. 162). If petitioner had entered this school 
he would have been the only student.

The law school of the University of Texas had a moot 
court, legal aid clinic, law review, a chapter of Order of the 
Coif, and a scholarship fund (R. 102-105). None of these 
were present or possible in the proposed Negro law school, 
and Charles T. McCormick, dean of the two law schools, 
testified that he did not consider these to be factors ma­
terial to a legal education but rather, that they were “ ex­
traneous matters”  (R. 106).

B

T h e  U nreasonab len ess o f  C om p u lsory  R acia l 
S egrega tion  in P u b lic  L ega l E d u cation

Dr. Robert Redfield, Chairman of the Department of 
Anthropology at the University of Chicago, testified, as an 
expert, that there is no recognizable difference as to ca­
pacities between students of different races and that scien­
tific studies had concluded that differences in intellectual 
capacity or ability to learn have not been shown to exist 
between Negroes and other students. He testified that as a 
result of his training and study in his specialized field for 
some twenty years, it was his opinion that given a similar 
learning situation with a similar degree of preparation, one 
student would do as well as the other, on the average, with­
out regard to race or color (R. 192-194).

Dr. Redfield testified further that the main purpose of 
education is to develop in every citizen, in accordance with 
the natural capacities of such citizen, the fullest intellectual 
and moral qualities and the most effective participation in 
the duties of citizenship (R. 192).

Dean Ear] G. Harrison of the University of Pennsyl­
vania Law School, testifying as an expert in the field of



1 0

legal education, summed up the purposes of legal education 
as follows: “ The studies that I have reference to have 
pointed out in general that there are four objectives of law 
school education. One is, of course, to prepare the prac­
titioner. Second, is to prepare and train law teachers. 
Third, is to train and prepare men for legal research, and 
the fourth objective is to train and prepare men and women 
for public service”  (E. 220).

Professor Malcolm Sharp of the law faculty of the Uni­
versity of Chicago testified as an expert in the field of legal 
education and explained in detail the purposes of legal 
training for public service giving examples of the benefits 
to society of Negro lawyers trained for public service in 
non-segregated law schools (E. 344-346).5

The experts on legal education also testified as to the 
patent inequality between the two law schools and the im­
possibility of equality between the schools. They agreed 
that it was absurd to speak of any institution that has one 
student as a law school (E. 216-217, 349-350). They stressed 
the need for competition among students of all classes as 
an absolute necessity for a legal education (E. 218, 344, 
347). They testified that moot court, Order of the Coif, 
scholarship fund, law reviews and legal aid clinics were 
most important for a well-rounded legal education and that 
they were "not by any means extraneous”  (E. 221. 347).

*“Q. Xaw. ss a resnlr of year studies and your teaching ex- 
terrmce. along with your experience in the Association of American 
Law Scfsrois. wrali yea state arietiy the recognized purposes of a 
taw school is of today?

“A. The purpese :t a !asr school is. i f  eterse , first: to  train to r
• ' ' :: tot ' ■ the w '  ir ~ ij  The - : - -.

l a s  been  heenam g h r  and  a a e  important. a s  all o f  the leading 
scratds inne mo: crate-i r i r h o  for peshfatss o t o c 'h a  service, as 
h 'T v g s ire  m ilei :c  to 5 L ®  * * ranrkec extent, a.hninisr~.tr.ve
nr• • : ; Toe •.
mere ami mere i r s a x r  x  t~ :w ~tt far xa*  rcr.vse. O : c o rse .
the w a rTmg: A m in e rs  mrS saacLrs i s  the r e h i“



11

These expert witnesses also testified that a sizeable body 
of students of all races, classes and walks of life was of 
major importance to an adequate legal education. They 
denied that one Negro or a few Negroes at a segregated law 
school could under any circumstances obtain a legal educa­
tion equal to that obtained at the University of Texas (E. 
227, 343, 344, 347, 350, 351, 352).

Each of the expert witnesses offered by the petitioner 
testified that compulsory racial segregation in public educa­
tion not only made it impossible for the Negro to get an 
education equal to that offered to the students in the other 
school but was harmful to the segregated Negro students, 
the students in the other schools, and the community in gen­
eral (E. 194-196, 198-199, 227, 341).

c
Inequalities Inherent in  S egrega ted  S ch oo l F acilities

The petitioner offered in evidence several reports of 
governmental agencies, federal and state, showing without 
exception the inequalities in educational facilities in segre­
gated schools throughout the states where segregated 
schools are required (E. 248). The petitioner also offered 
the testimony of Dr. Charles Thompson, documented by 
recognized governmental reports, showing conclusively 
that wherever separate schools were maintained under 
state law for Negro students, these schools were without 
exception inferior to the schools maintained for students 
of other racial groups. The comparison was broken down 
into each category recognized by educators as valid for 
comparison purposes (E. 228-283).° An appendix showing 6

6 Dr. Thompson’s testimony was admitted into the record but by 
final order of the District Judge was ordered stricken from the record 
as being beyond the scope of the pleadings and issues and immaterial 
and irrelevant (R. 441).



12

in detail the inequalities in segregated school systems is 
tiled herewith as “ Petitioner’s Appendix” .

Petitioner also offered the testimony of Donald G. 
Murray who had been admitted to the law school of the 
University of Maryland as a result of legal action and who 
was the first Negro to be admitted to a law school in a 
state where segregation is required in public schools. Ob­
jection to this testimony was sustained but the testimony 
was placed in the record on a bill of exceptions (R. 288). 
This testimony showed that although dire consequences 
were predicted by state officials of Maryland if Murray was 
admitted to the law school, it developed that his admission 
brought about no untoward results (R. 288-291).

P A R T  T W O

OPINION OF THE COURT BELOW

The Court of Civil Appeals in affirming the judgment 
of the lower court based its decision on existence of and the 
validity of the state’s policy of segregation and found that 
“ the State at the time of the trial had provided and made 
available to Relator a course of instruction in law as a first 
year student, the equivalent or substantial equivalent in its 
advantages to him of that which the State was then pro­
viding in the University of Texas Law School. We are not 
dealing here with abstractions but with realities”  (R. 149). 
The judgment of the Supreme Court of Texas refusing 
application for writ of error (R. 4461 and order overruling 
motion for rehearing were made without an opinion (R. 17). 
The opinions o f the trial court are discussed in Part One.



13

P A R T  T H R E E  

JURISDICTION

Jurisdiction of this Court is invoked under Title 28, 
United States Code, section 1257 this being a case involving 
rights secured under the Fourteenth Amendment. Peti­
tioner ’s cause is founded upon rights secured by the Consti­
tution of the United States.

P A R T  F O U R  

QUESTION PRESENTED

May the State of Texas Consistently With the Requirements 
of the Fourteenth Amendment Refuse to Admit Petitioner 
Because of Race and Color to the University of Texas 

School of Law?

P A R T  F I V E

REASONS RELIED UPON FOR ALLOWANCE  
OF THE W RIT

I
The courts of Texas, and of many states, while pretend­

ing to observe the requirements of equal protection of the 
laws in educational matters, approve the exclusion of 
Negroes from adequate public law schools, thus denying to 
large numbers that equality of educational opportunity 
which is the very foundation of democracy. The courts’ 
theory presupposes that the equality guaranteed by the 
Fourteenth Amendment can be realized in a pattern of com­
pulsory racial segregation in public education. The extent 
of this practice and the severity of its impact on the com­
munity are such as to warrant consideration by this Court.



14

II
The court below relied on Plessy v. Ferguson. The in­

consistency between the judicial approval of laws imposing 
racial distinctions in Plessy v. Ferguson and the judicial 
disapproval of similar distinctions and classifications in 
more recent decisions including Oyama v. California, 
Shelley v. Kraemer, Tdkahashi v. Fish <& Game Commission 
should lead this Court to review the correctness of the doc­
trine of Plessy v. Ferguson and overrule it.7

III
This Court should review and reverse the judgment be­

low to prevent the several states from being free to restrict 
Negroes to public educational facilities clearly inferior to 
those provided for all other persons similarly situated 
through the device of arbitrary judicial decision that such 
discriminatory action provides “ substantial equality” .

CONCLUSION
W herefore, it is respectfu lly  subm itted that this petition  

fo r  w rit o f  certiorari to rev iew  the judgm ent o f  the court 
below, should be granted.

W. J. D u rham ,
W illiam  H. H astie, 
W illiam  R. Mihg, Jr.,
J ames M. Nabrit, J r ., 
T hurgood M arshall,

R obert L. Carter, Attorneys for Petitioner.
E. B. B u u kley , J r .,
H arry B ellihger,
U. S. T ate,

Of Counsel.

7 Plessy v. Ferguson, 163 U. S. 537; Oyama v. California, 332 
U. S. 633; Shelley v. Kraemer, 334 U. S. 1; Takahashi v. Fish and 
Game Commission, 332 U. S. 410. As to this Court’s disapproval 
of unreasonable classifications generally, see, for example, Colgate v. 
Harvey, 296 U. S. 404.



IN THE

Supreme Court of the United States
October Term, 1948

No.

H em an  M arion S weatt,
Petitioner,

vs.

T heophilis S hickel  P ainter, et al.

BRIEF IN SUPPORT OF PETITION FOR W RIT OF 
CERTIORARI TO THE SUPREME COURT  

OF TEXAS

Opinion of the Court Below

The opinion of the Court of Civil Appeals can be found 
at page 445 of this record, and that of the District Court of 
Travis County is reported at page 438.

Jurisdiction

Jurisdiction of this Court rests upon Title 28, United 
States Code, Section 1257. The District Court of Travis 
County entered judgment for respondents on June 17, 1947.

15



16

Judgment was affirmed by Court of Civil Appeals, Febru­
ary 25, 1948. Application for writ of error was refused by 
Supreme Court of Texas on September 29, 1948 (R. 466). 
Motion for rehearing was overruled on October 27, 1948 
(R. 471). On January 12,1948 this Court extended the time 
for filing this petition for writ of certiorari until March 23, 
1949 (R. 472).

Statement of the Case

Pertinent facts involved in this case are set out in the 
petition itself, and therefore, are not restated here.

Errors Relied Upon

The Court erred in refusing to consider evidence show­
ing discriminatory features inherent in enforced racial 
separation at the professional school level.

The Court erred in predicating its decision upon Plessy 
v. Ferguson and in disregarding principles serving the basis 
for more recent decisions of this Court in conflict with the 
rationale of that case.

The Court erred in refusing to hold that the racial classi­
fication here complained of was arbitrary and unreasonable 
within the meaning of the Fourteenth Amendment.

The Court erred in finding that the law school for 
Negroes at Austin was the “equivalent or substantial equi­
valent of the law school of University of Texas” .

The Court erred in finding that the constitutional and 
statutory provisions of the State of Texas requiring segre­
gation in public education were consistent with the require­
ments of the Fourteenth Amendment.



17

A R G U M E N T

I

The question whether a state which undertakes to 
provide legal education for any of its citizens can sat­
isfy the requirements of the equal protection clause of 
the Fourteenth Amendment by establishing a law 
school for Negroes separate from the law school it pro­
vides for all other persons is of great public impor­
tance and should be decided by this Court in this case.

The education of the youth of our nation, formerly the 
responsibility of the parent, has now become a recognized 
function of government. This has become a matter of 
national importance. The individual states have provided 
public education through the graduate and professional 
school levels. Most of the states provide educational facili­
ties without regard to the race or creed of the student. 
However, seventeen of the states have insisted upon either 
the complete exclusion or the segregation of Negroes in 
public education.1 The record of these states has brought 
down the national level of education. The question of the 
legality of such racial segregation, which amounts to actual 
exclusion from the regular recognized state university, is of 
great public importance.

The seventeen southern states where a pattern of edu­
cational segregation is sanctioned and enforced by state law 
comprise the area of our country which is least able to 
afford either the financial or the educational hazards created 
by a dual system of education. The burden on the treasury 
in maintaining a dual system of education cannot help but

1 Alabama, Arkansas, Delaware, Florida, Georgia, Kentucky, 
Louisiana, Maryland, Mississippi, Missouri, North Carolina, Okla­
homa, South Carolina, Tennessee, Texas, Virginia, West Virginia.



18

be reflected in a deprivation of educational opportunities 
and facilities for all groups.

The impact of this policy of segregation is felt not only 
by the minority group, but the nation as a whole. In the 
most critical period of June-July, 1943, when the nation 
was crying for manpower, 34.5% of the rejections of 
Negroes from the armed forces were for educational de­
ficiency. Only 8% of the white selectees rejected for mili­
tary service failed to meet the educational standards.2

The official War Department report on the utilization of 
Negro manpower in the postwar Army says that “ in the 
placement of men who were accepted, the Army encountered 
considerable difficulty. Leadership qualities had not been 
developed among the Negroes, due principally to environ­
ment and lack of opportunity. These factors had also af­
fected development in the various skills and crafts.” 3

■ Eecognizing that segregation constitutes a menace to 
American freedom and was indefensible, the President’s 
Committee on Civil Eights unequivocally recommended its 
elimination from American life.4 In the same year, the

2 The Black and White of Rejections for Military Service, Mont­
gomery, Ala., American Teachers Association, 1944, p. 5.

3 Report of Board of Officers on Utilization of Negro Manpower 
in the Post-War Army (February, 1946), p. 2.

4 “To Secure These Rights” , The Report of the President’s Com­
mittee on Civil Rights, U. S. Government Printing Office, 1947, p. 
166 “ The separate but equal doctrine has failed in three important 
respects. First, it is inconsistent with the fundamental equalitari- 
anism of the American way of life in that it marks groups with the 
brand of inferior status. Secondly, where it has been followed, the 
results have been separate and unequal facilities for minority peoples. 
Finally, it has kept people apart despite incontrovertible evidence that 
an environment favorable to civil rights is fostered whenever groups 
are permitted to live and work together. There is no adequate de­
fense of segregation.”  Ibid.



19

President’s Commission on Higher Education, in its report 
on education in the United States said:5

“ The time has come to make public education at 
all levels equally accessible to all, without regard to 
race, creed, sex or national origin.”

This, too, is the almost unanimous conclusion of scholars 
and students who have studied the problem.

The professional skills developed through graduate 
training are among the most important elements of our 
society. Their importance is so great as to be almost self- 
evident. Teachers pass on skills and knowledge from one 
generation to another. Engineers create and service the 
technology that has been bringing more and more good to 
more and more people. Doctors and dentists guard the 
health of their people. Lawyers guide their relationships 
in a complicated society.

Racial inequality in education has resulted in a loss to 
the nation of the development of these professional skills in 
a great part of our population. Because of the limited op­
portunities open to Negroes in professional education, in 
the United States in 1940, there was one white physician 
for every 735 white citizens, but only one Negro doctor for 
every 3,651 Negroes.6 And one wMte lawyer served 670 
whites, but there was only one colored lawyer for every 
12,230 Negro citizens.7 In the petitioner’s native state of 
Texas, the same deprivation of professional services exists. 
In 1940 in Texas, one white lawyer served 709 whites,

5 “ Higher Education for American Democracy” , A  Report of the 
President’s Commission on Higher Education, U. S. Government 
Printing Office, Washington, December, 1947, p. 38.

8 Journal of Negro Education (1945), Vol. XIV , Fall number, 
p. 511.

7 Ibid, p. 512.



20

whereas there was only one Negro lawyer for every 40,191 
Negroes.8

Perhaps even more important than the harriers which 
segregation offers to the development of leadership and 
professional skills is its corrosive effect npon the funda­
mentals of a democratic society. Neither white nor Negro 
Americans can maintain complete and foil allegiance to the 
basic tenet npon which our government is founded—“ that 
all men are created equal'’—when pupils are being forcibly 
kept apart in the public- schools because of their racial iden­
tity.

It is essential for the successful development of our 
country as a nation of free people that the sympathies and 
tolerance which we wish practiced in later life be fostered 
in the classroom. “ And since according to our institutions, 
all classes meet, without distinction, in the performance of 
civil duties, so should they all meet, without distinction of 
color, in the school, beginning there those relations of 
equality which our Constitution and laws promise to ah." ■

Enforced separation in the law sehooL moreover, is par­
ticularly pernicious because of the vital importance which 
the lawyer marntain^in our. society. Law is “ a public pro­
fession charged with inescapable social responsibilities."1'1 
The prime purpose of legal training must be not merely, as 
Mr. Justice Honweg has said, “ to make men smart, but to

* r/n fata j# Sixteenth Census of the Uiated States: Popu-
,',i t, Reportslsy States (AMD).

' or C-.srlet 'rscscer, Esqp Agdmst die Gmacra j ja-
‘■;cy or Ovor-e: x'f.tfx; ir. on* c m  Samk C. Roberts v. Bottom* 
■ Wf. ZXy 20 '/»

,4 .-.w.-.yif,’'. 1 m s’vxi'xv.m o f a U rn m stv  Law School". 49
L U*y, I«m , W72,



21

make them wiser in their calling” ,11 and “ to train men for 
public service.” 12

The testimony of the expert witnesses in legal education 
called by the petitioner 13 is amply supported by other ex­
perts. Eminent authorities in the field of legal education 
have demonstrated that there are certain features of a law 
school which are necessary to a proper legal education which 
can only be found in a full-time, accredited law school.14 
Some of these are: a full-time faculty,15 a varied and inclu­
sive curriculum,16 an adequate library, well-equipped build­
ing and several classrooms,17 a well-established, recognized 
law review and a moot court.18

Equally essential to a proper legal education in a demo­
cratic society is the inter-change of ideas and attitudes 
which can only be effected when the student-body is repre­
sentative of all groups and peoples. Exclusion of any one

11 Holmes, “ The Use of Law Schools” in Collected Legal Papers 
(1920), pp. 39-40.

12 Malcolm Sharp, testimony at p. 341 in Record. See also Mc­
Cormick, “ The Place and Future of the State University Law School,”  
24 N. C. L. Rev. 441, “ As we rebuild our curricula, it seems that 
more attention should be given to the knowledge that a lawyer needs 
in order to be a community leader— such matters as planning, zoning, 
and housing come to mind—and to the adaptation of the public law 
courses not only to the needs of the lawyer serving private clients, 
bat to  the requirements of graduates who will enter the service of 
the slate and national governments,”

. l- ■ h o u r o ;  v  j. u n  r ,  v  : a , a  a:  ;/.<•/; r th< pet ' ion
at pages 9 to l i ,

bee kon-er “ smaller \>.w iybools factors Affecting 1 heir 
ICeihrU am ' J o t r :  ■ 20 Oregon lu-vv !'<-/ 2U f 3941;

24 /  ":C
*J w l,

T wa*r. C''ttan za',<rr a</i UjAtatiou </■ >- / m o o . 2
.Ant Lav V,ooo he CViOy, fcallantita o> V & tj  »
Ln:"-aa".e o  <■ '/■■■’/,> ' < hr. -Jo.'.
x s :'r j. Lerer-r- YjY/_

k' C o r  1 /  m// 1'aetv‘ AlfeeUng 1 net'
2' '/SV 7- R* 22 ' !9 S



22

group on the basis of race, automatically imputes a badge 
of inferiority to the excluded group—an inferiority which 
has no basis in fact.19 The role of the lawyer, moreover, is 
often that of a law-maker, a “ social mechanic” , and a 
“ social inventor.” 20 A profession which produces future 
legislators and social inventors to whom will fall the social 
responsibilities of our society, can not do so on a segregated 
basis.21

It is evident that even if it were possible to construct a 
law school building for Negroes equal in all respects to the 
one now in existence at the University of Texas with a 
library equal in all respects, with a faculty of equal num­
ber and equal ability (if possible), the separate law school 
could not meet the recognized requirements set out above. 
Actually, in so far as legal education is concerned, an equal 
education is impossible in a jim-crow law school.

Even apart from this, it is absurd to speak of a school 
with only one student as a law school. In the field of legal 
education, even more so than in other fields of public edu­
cation, the blind adherence to the practice of compulsory 
racial segregation not only deprives the individuals in­
volved of the equality of law, but deprives the state and the 
nation of properly trained specialists necessary to our 
government.

19 “ The Black and White of Rejections for Military Service,” 
American Teachers Association, August, 1944, page 29; Otto Kline- 
berg, “ Negro Intelligence and Selective Migration,”  New York, 
1935; J. Peterson & L. H. Lanier, “ Studies in the Comparative Abili­
ties of Whites and Negroes,” Mental Measurement Monograph, 1929.

20 Simpson, “ The Function of a University Law School,”  49 
Harv. L. Rev. 1068, 1072. See also McCormick, “ The Place and 
Future of the State University Law School,” 24 N. C. L. Rev. 441.

21 Simpson, op. cit., p. 1069. See also Stone, “ The Public Influ­
ence of the Bar,” 48 Harv. L. Rev. 1.



23

II

The inconsistency between the judicial approval of 
laws imposing racial distinctions in Plessy v. Ferguson 
and the judicial disapproval of similar distinctions and 
classifications in more recent decisions should lead this 
Court to review and disavow the doctrine of Plessy v. 
Ferguson.

In upholding the denial of petitioner’s application for a 
writ of mandamus, the Court of Civil Appeals said: “ The 
validity of state laws which require segregation of races in 
state-supported schools, as being, on the ground of segre­
gation alone, a denial of due process, is not now an open 
question. The ultimate repository of authority to construe 
the Federal Constitution is the Federal Supreme Court. We 
cite chronologically, in a note below, the unbroken line of 
decisions of that tribunal recognizing or upholding the 
validity of such segregation as against such attack.”  In 
support of this proposition, Hall v. DeCuir, 95 U. S. 485; 
Plessy v. Ferguson, 163 U. S. 537; Cummings v. County 
Board of Education, 175 U. S. 528; McCabe v. Atchison, T. 
<& 8. F. R. Co., 235 U. S. 151; Gong Lum v. Rice, 275 U. S. 
78; Missouri ex ret. Gaines v. Canada, 305 U. S. 337; Sipuel 
v. Board of Regents, 332 U. S. 631 were cited.

Plessy v. Ferguson raised in this Court for the first time 
the question of the constitutionality of a state statute en­
forcing segregation based upon race and color. In that 
case, a Louisiana statute requiring the separation of Negro 
and white passengers was held to be consistent with the 
equal protection clause of the Fourteenth Amendment. Yet 
the opinion appears to rely heavily upon the leading state 
case in this field—-and the only one of the cited cases dis­



24

cussed in the majority opinion22—Roberts v. Boston, 5 
Cush. (Mass.) 198 (1849), decided almost twenty years be­
fore the adoption of the Fourteenth Amendment. Yet, it 
was the very diversity of opinion, so pronounced in 1849, 
on the reasonableness of legal distinctions based on race 
which the Fourteenth Amendment sought to settle. Ante­
bellum justifications of segregation have no more logical 
place in the interpretation of the Fourteenth Amendment 
than antebellum notions of voting restrictions have in de­
fining the scope and meaning of the Fifteenth Amendment.

In addition, Plessy v. Ferguson was decided upon plead­
ings which assumed a theoretical equality within segrega­
tion rather than on a full hearing and evidence which would 
have revealed equality to be impossible under a system of 
segregation.

An examination of the other decisions of this Court upon 
which the lower court relied shows that the doctrine of 
Plessy v. Ferguson has not been reexamined nor seriously 
challenged.

In Cummings v. Board of Education, supra, the issue of 
the validity of the segregation statute was not even raised. 
In fact plaintiffs there acquiesced in the use of taxes levied 
to support segregated schools at the elementary and inter­
mediate grammar school levels. The main purpose of the 
suit was to secure an injunction forcing the discontinuance 
of a high school for whites since no school was being 
maintained for Negroes. This remedy the Court considered 
improper.

In Gong Lum v. Rice, supra, again the question was not 
raised. The primary issue there was whether a Chinese

22 Other cases cited in the opinion include: People v. Gallagher, 
93 N. Y. 438; and Ward v. Flood, 48 Cal. 36; State, Gdrnes v. Mc­
Cann, 21 Ohio. St. 210; Lehew v. Brummell, 103 Mo. 546; Cory v. 
Carter, 48 Ind. 337; Dawson v. Lee, 83 Ky. 49.



25

could be excluded from the white schools under the segre­
gation statutes of Mississippi, and could be classified as a 
colored person and required to attend the Negro school.23

In the Gaines case, supra, although the doctrine of 
Plessy v. Ferguson was repeated, it was neither examined 
nor applied. There the main issue before the Court was 
whether a qualified Negro applicant could be excluded from 
the only state supported law school. The Court decided that 
question in the negative.

In Sipuel v. Board of Regents, supra, the doctrine 
of Plessy v. Ferguson was neither raised, examined, re­
peated nor applied. The Court specifically stated that the 
appellant was entitled to receive educational benefits at the 
same time and as soon as it was offered to applicants of 
any other group. Moreover in Fisher v. Hurst, 333 U. S. 
147, the same case, supra, this Court was asked to issue an 
original petition for a writ of mandamus to compel com­
pliance with its mandate there. The Court denied the writ 
on the grounds that the original Sipuel case had specifically 
not raised the issue of the validity of the segregation stat­
utes and that procedurally the question could not be con­
sidered on the petition for writ of mandamus.

23 It is true that Mr. Chief Justice T a f t , op. cit., supra, at page 
85 in discussing the issue said: “ Were this a new question it would 
call for very full argument and consideration, but we think that it 
is the same question which has been many times decided to be within 
the constitutional power of the State Legislature to settle without 
intervention of the Federal Courts under the Federal Constitution.” 
Therefore, even if this decision is construed as raising the issue of the 
validity of school segregation statutes, it is clear that the doctrine was 
not examined and that Plessy, v. Ferguson was relied upon without 
question.



26

This is the group of cases upon which the separate but 
equal doctrine under the Fourteenth Amendment is said to 
depend.24 The inconsistencies between the “ separate but 
equal”  doctrine of Plessy v. Ferguson and the reasoning 
and holdings of a considerable body of decisions of this 
Court become readily apparent when analysis is made in 
terms of the fundamental question, common to all, whether 
racial differences can be made the bases for legislative dis­
tinctions in the face of the Fourteenth Amendment. Except 
in Plessy v. Ferguson, supra, and the decisions which rely 
uncritically upon it, this Court has consistently concluded 
that the Fourteenth Amendment prohibits the states from 
making racial differences and other arbitrary distinctions 
the bases for general classifications. This impressive and 
carefully considered group of cases includes: Takahashi v. 
Fish & Game Commission, 332 U. S. 410, 420 L. ed. 1096, 
1101; Oyama v. California, 332 U. S. 633, 640, 646; Shelley 
v. Kraemer, 334 U. S. 1, 20, 23; Yick Wo v. Hopkins, 118 
IJ. S. 356, 373, 374; Buchanan v. Warley, 245 U. S. 60, 82; 
Hill v. Texas, 316 U. S. 400, 404; Strauder v. West Virginia, 
100 U. S. 303, 307, 308; Truax v. Raich, 239 IT. S. 33, 41, 42;

24 Another case in point but not relied upon by the court below 
is Berea College v. Kentucky, 211 U. S. 45. That case appears 
to accept the doctrine insofar as the power of the state to place 
conditions on a corporate charter. Hall v. DeCuir, supra; McCabe v. 
Atchison, T. & S. F. R. Co., 235 U. S. 151; Mitchell v. United States, 
313 U. S. 80 were decided under the Commerce Clause of the Federal 
Constitution and need not be considered in a decision as to the validity 
of the equal but separate doctrine within the meaning of the Four­
teenth Amendment. The foundation of even those cases, however, 
seems to have been shaken. Compare Morgan v. Virginia, 328 U. S. 
373; Bob-Lo Excursion Co. v. Michigan, 333 U. S. 28.



27

Virginia v. Rieves, 100 U. 8. 313, 322; Ex Parte Virginia, 
100 U. S. 339, 344, 345.25

These cases merely apply to racial distinctions the gen­
eral constitutional principle applicable in all other areas. 
Their rationale is merely a part of and consistent with the 
basic principle that all governmental classifications must be 
based upon a significant difference having a reasonable rela­
tionship to the subject matter of the statute. Southern 
Railway Co. v. Greene, 216 U. S. 400, 417; Gulf Colorado d  
Sante Fe Railway Co. v. Ellis, 165 U. S. 150, 155; Connolly 
v. Union Sewer Pipe Co., 184 IT. S. 540, 559, 560; Atchison 
Topeka d  Santa Fe Railway Co. v. Vosburg, 238 U. S. 56, 
60, 61; Royster Guano Co. v. Virginia, 253 U. S. 412, 416, 
417; Smith v. Cahoon, 283 U. S. 553, 566, 567; Hartford 
Steam Boiler Inspection d  Insurance Co. v. Harrison, 301 
U. S. 459, 462, 463; Colgate v. Harvey, 296 IT. S. 404, 422, 
423; Mayflower Farms v. Ten Eyck, 297 U. S. 266, 274; 
Skinner v. Oklahoma, 316 IT. S. 535, 541, 542; Louisville Gas 
d  Electric Co. v. Cohen, 277 U. 8. 32, 37; Quaker City Cab 
Co. v. Pennsylvania, 277 IT. S. 389, 400; Powers Mfg. Co. v. 
Saunders, 274 IT. S. 490, 493; Truax v. Corrigan, 257 IT. S. 
312, 337; Cotting v. Kansas City Stock Yards Co., 183 IT. S. 
79, 106, 107.

25 Takahashi v. Fish & Gdme Commission;  Yick Wo v. Hopkins 
and Truax v. Raich involved the right to engage in a useful occupa­
tion. Oyama v. California, Shelley v. Kraemer and Buchanan v. 
Warley involved the right to own, occupy, sell and lease real prop­
erty. Hill v. Texas, Strauder v. West Virginia, Virginia v. Rieves 
and E x Parte Virginia, involved the right of Negroes to be free of 
discrimination in the selection and composition of grand and petit 
juries.

Despite the different problems involved, the Court made the 
same fundamental approach to each case. Underlying each decision 
is the basic proposition that race alone cannot be a valid criterion upon 
which to sustain governmental action under the 14th Amendment. 
Finding on examination that the real purpose and effect of the state’s 
action  ̂was racial discrimination, no difficulty was encountered in 
declaring the action unconstitutional.



28

Neither the decision nor the rationale of Plessy v. Fer­
guson can he reconciled with this impressive body of au­
thorities.

The Court below in relying on Plessy v. Ferguson and in 
ignoring this body of cases has improperly and mistakenly 
construed the limitations of the Fourteenth Amendment as 
applied to the instant case. For not only is Plessy v. Fer­
guson inconsistent with many decisions of this Court, but it 
was wrongly decided. In sustaining a statute based upon 
a difference in the color of citizens, this Court made a 
radical departure from the body of cases, cited supra, under 
which such a distinction would have necessarily been con­
strued as arbitrary and therefore unlawful. In requiring 
that a classification be based upon a significant difference 
having a reasonable relationship to the subject matter of the 
statute, that body of decisions rests upon a sound founda­
tion. The same principle should be controlling in the in­
stant case. Any other approach makes the equal protection 
clause meaningless. Insofar as Plessy v. Ferguson affects 
the application of that principle to the instant case, it 
should not be followed.

Ill

This Court should review and reverse the judgment 
below to prevent the several states from being free to 
restrict Negroes to public educational facilities clearly 
inferior to those provided for all other persons simi­
larly situated through the device of arbitrary judicial 
decision that such discriminatory action provides “sub­
stantial equality” .

Texas and sixteen other states have insisted that public 
education can only be furnished on a basis of racial distinc­



29

tion between students. The purpose of this practice is to 
exclude Negroes from the recognized state educational in­
stitutions. The record in this case, as in other cases, will 
demonstrate that these states first establish facilities for 
non-Negroes. Later, either as a result of legal action or 
other compulsion, separate institutions have been estab­
lished for Negroes.

The record in this case, the record in similar cases, 
governmental and private studies, demonstrate clearly that 
the separate Negro facilities are never equal to the facilities 
established for other groups. In short, we have been unable 
to find a single recognized study of public education on a 
segregated basis which reveals equality of opportunity as 
between the segregated and non-segregated schools. The 
Negro school is invariably an inferior school.

The “ separate but equal”  doctrine of Plessy v. 
Ferguson, relied upon by Texas and the other southern 
states is based on the hypothesis that equal facilities can be 
realized in a segregated school system. The record in this 
case and in other cases has demonstrated the invalidity of 
such a hypothesis. It is clear not only that the doctrine of 
“ separate but equal”  has not produced equality, but can 
never provide the equality required by the Fourteenth 
Amendment.

This separate but equal doctrine has brought about con­
stant and continual litigation. Negroes have gone to the 
courts in Missouri,26 South Carolina,27 Tennessee,28 Louisi­

26 Missouri, ex rel. Gaines v. Canada, supra; Bluford v. Canada, 
32 F. Supp. 707 (1940) (Appeal dismissed 119 F. (2d) 779 (C. C. 
A. 8th)).

27 Wrighten v. Board of Trustees, 72 F. Supp. 948.
28 State, ex  rel. Michael v. Whitham, 179 Tenn. 2S0, 165 S. W. 

(2d) 378 (1942).



30

ana,29 30 31 Oklahoma,80 Maryland,81 Kentucky,32 and Texas in 
order to secure educational advantages equal to those being 
offered to all other qualified persons. The formula con­
stantly invites such court action. In all instances this has 
meant loss of time and years out of an individual’s career, 
while his case pursues its way through the courts. This 
very fact shows the weakness of the doctrine.

The states are more interested in maintaining segrega­
tion than in affording equality. Hence the separate but 
equal doctrine has now become the “ separate but substan­
tially equivalent’ ’ doctrine. The record in this case is a 
clear example of the circuitous route forced upon a Negro 
litigant seeking only to enforce a right recognized as belong­
ing to every other qualified applicant except those who 
happen to be Negroes.

Petitioner in this case applied for admission to the exist­
ing state law school on February 26, 1946. All qualified 
students other than Negroes who applied at the same time 
and who successfully passed their examinations are now 
either practicing law or are ready to take the bar examina­
tion for that purpose. On the other hand, the petitioner, 
solely because of his race and color, after long, extended 
and involved litigation is still without a legal education.

29 Louisiana, ex rel. Hatfield v. Louisiana State University (File 
25,520, State Court for the 19th Judicial District).

30 Sipuel v. Board o f Regents, supra; Fisher v. Hurst, supra; 
McLaurin v. Oklahoma State Regents, No. 614, U. S. Supreme 
Court, Oct. Term, 1948.

31 Pearson v. Murray, 169 Md. 478, 182 Atl. 590 (1936).
32 Johnson v. Board of Trustees (File No. 625, U. S. Dist, Court 

for the Eastern Dist. o f Kentucky).



31

At the first hearing in this case, although the trial court 
concluded that petitioner had been denied rights guaranteed 
by the Constitution, nevertheless, because of the separate 
but equal doctrine, it refused to issue the order for the 
necessary relief and allowed the state six months in which 
to set up the facility separate from that in existence at the 
University of Texas. At the end of the six months’ period 
the trial court again reverted to the separate but equal doc­
trine and found that petitioner had been given substantially 
equivalent educational opportunities to that afforded to 
whites at the University of Texas on the mere promise of 
the state to establish a law school for Negroes in Houston.

At the third hearing, this same court in the face of peti­
tioner’s testimony which conclusively established that the 
facilities in the basement law school at Austin, faculty, 
library and in all respects were in no way equal or substan­
tially equivalent to the law school at the University of Texas 
found that this makeshift school established over night in a 
basement of a building afforded to petitioner “ equal if not 
better opportunities for the study of law,”  than he could 
obtain at the University of Texas.

The Court of Civil Appeals in the face of this clear 
evidence showing that the Negro school was inferior to 
the white school agreed with the petitioner that there could 
be no substantial equality, the two words being incom­
patible in themselves, but said the Court:

“ This is of course true in pure, as distinguished 
from applied, mathematics. ‘ Equality’ like all ab­
stract nouns must be defined and construed accord­
ing to the context or setting in which it is employed. 
Pure mathematics deals with abstract relations, 
predicated upon units of value which it defines or 
assumes as equal. Its equations are therefore exact. 
But in this sense there are no equations in nature;



32

at least not demonstrably so. Equations in nature 
are manifestly only approximations (working hy­
potheses) ; their accuracy depending upon a proper 
evaluation of their units or standards of value as 
applied to the subject matter involved and the ob­
jectives in view. It is in this sense that the decisions 
upholding the power of segregation in public schools 
as not violative of the fourteenth amendment, em­
ploy the expressions ‘ equal’ and ‘ substantially equal’ 
and as synonymous”  (E. 449).

The most authoritative studies made on public education 
in the United States clearly indicate that the Negro insti­
tutions are vastly inferior to the whites. Yet when faced 
with the necessity of holding Negro institutions to be in­
ferior to the white and therefore to order the admission of 
the Negro to the white institution, courts have fallen back 
on the formula “ substantially equivalent”  to justify their 
decision to refuse the admission of the Negro into the white 
institution.

If it were not for the constitutional and statutory pro­
visions requiring segregation in public education in Texas, 
there could be little doubt that the lower courts would have 
ordered the admission of the petitioner. If it were not for 
the existence of the “ separate but equal”  doctrine, the 
lower courts would have had no difficulty in declaring that 
said constitutional and statutory provisions were unreason­
able classifications and therefore unlawful. But for the 
“ separate but equal doctrine” , the Texas courts would not 
have been able to justify the Negro law school as “ substan­
tially equivalent”  and would have declared the constitu­
tional and statutory provisions to be unreasonable classi­
fications in violation of the Fourteenth Amendment.

Therefore, the only way for the petitioner in this case 
and other qualified Negroes to obtain a legal education equal



33

to that obtained by all other qualified applicants is by ad­
mission to the recognized state institutions. The only way 
this can be accomplished is for this Court to reconsider the 
doctrine of Plessy v. Ferguson and overrule it.

CONCLUSION

W herefore, it is respectfu lly  subm itted that this petition  
fo r  w rit o f  certiorari to review  the judgm ent o f  the court 
below , should be granted.

W. J. D urham ,
W illiam  H. H astie, 
W illiam  E. M ing, J r .,
J ames M. Nabrit, J r ., 
T hurgood M arshall,

Attorneys for Petitioner.

E obert L. Carter,
E. B. B u n kley , J r .,
H arry B ellinger,
U. S. T ate,

Of Counsel.

f



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