Florida v. Board of Control Petition for Writ of Certiorari to the Supreme Court of the State of Florida

    £§>uttn>mr ( ta r t  rtf %  luitrfc Stairs

O ctober Term, 1952  
No.

STATE OP FLORIDA EX REL VIRGIL I). HAWKINS,
ET AL.,

Petitioners,
vs.

BOARD OF CONTROL, ET AL.

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF THE STATE OF FLORIDA

Robert L. Carter,
H orace H ill,
T hurgood Marshall,

Counsel for Petitioners.

E lwood H . Chisolm ,
of Counsel.

Supreme F einting Co.. Inc., 41 M urray Street, N. Y., BArclay 7-0349 
•W.-3-*- -19



I N D E X

Subject Index
PAGE

Petition for Writ of Certiorari ..................................  1
Opinions Below ...........................................................   1

First Opinion.........................................................  1
Second Opinion ...................................................... 2
Third Opinion .......................................................  2

Jurisdiction ..................................................................  2
Questions Presented .........................................   2
Statement ......................................................................  3
Specification of Error ..................................................  7
Reasons for Allowance of the W rit ..............................  7
Conclusion......................................................................  9

Table of Cases

McKissiek v. Carmichael, 187 F. 2d 949 (C. A. 4th
1951) .........................................................................  8

McLaurin v. Oklahoma State Regents, 339 U. S. 637 . . 8, 9
Missouri ex rel Gaines v. Canada, 305 U. S. 337 .........  7
Sipuel v. Board of Regents, 332 U. S. 631.................... 7
Sweatt v. Painter, 339 U. S. 629 .................................... 8, 9
Wilson v. Board of Supervisors, 340 U. S. 909 .........  8



Supreme (tort nf %' Tlhnttb States
October Term, 1952 

No.

o-

S tate of F lorida ex rbl V irgil D. H awkins, E t A l .,

vs.
Petitioners,

B oard of Control, E t Al .
---------------- --- o--------------------

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF THE STATE OF FLORIDA

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

Petitioners pray that a writ of certiorari issue to review 
the judgment of the Supreme Court of Florida, entered 
in the above-entitled causes on August 1, 1952.

Opinions Below

First Opinion

These cases have now been pending for more than two 
years. The first opinions of the Florida Supreme Court 
were entered on August 1, 1950. The opinion involving 
petitioner Virgil D. Hawkins is reported at 47 So. 2d 608 
(R. 25); that involving petitioner Rose Boyd is reported 
at 47 So. 2d 619 (R. 25); that involving petitioner Oliver 
Maxey is reported at 47 So. 2d 618 (R. 24); and that in­
volving petitioner Benjamin Finley is reported at 47 So. 
2d 620 (R. 25).



2

Second Opinion

Opinions were again filed by the Florida Supreme Court 
on June 15, 1951. The opinion involving petitioner Haw­
kins is reported at 53 So. 2d 116 (R. 40); that involving- 
petitioner Boyd is reported at 53 So. 2d 120 (R. 28); that 
involving petitioner Maxey is reported at 53 So. 2d 119 
(R. 27); and that involving petitioner Finley is reported 
at 53 So. 2d 119 (R. 28).

Third Opinion

The third and final set of opinions of the Florida 
Supreme Court was entered on August 1, 1952. The 
opinion involving petitioner Hawkins is reported at 67 
So. 2d 162 (R. 47); that involving petitioner Boyd is re­
ported at 67 So. 2d 166 (R. 32); that involving petitioner 
Maxey is reported at 67 So. 2d 166 (R. 31); and that in­
volving petitioner Finley is reported at 67 So. 2d 166 
(R. 31).

Jurisdiction

The Supreme Court of Florida, on August 1, 1952, 
denied petitioners’ motions for peremptory writs of man­
damus, quashed the alternative writs of mandamus hereto­
fore issued and dismissed the causes (.Hawkins R. 52; 
Boyd R. 32; Maxey R. 31; Finley R. 32). Jurisdiction of 
this Court is invoked pursuant to Title 28, United States 
Code, Section 1257 (3). At each and every stage of these 
proceedings, petitioners have relied upon and pressed their 
claims under the equal protection clause of the Fourteenth 
Amendment.

Questions Presented

Can the State of Florida refuse to admit petitioners 
to the University of Florida for the pursuit of graduate 
training in agriculture and chemical engineering, and pro­



3

fessional training in law and pharmacy solely because of 
their race and color without violating petitioners’ rights to 
the equal protection of the laws as guaranteed under the 
Fourteenth Amendment to the Constitution of the United 
States.

Statement

Petitioners Virgil 1). Hawkins, Rose Boyd, Oliver 
Maxey and Benjamin Finley brought separate and inde­
pendent actions in the court below seeking writs of man­
damus ordering their admission to the University of 
Florida. Since all four cases involve the same question, 
one petition is being filed here.

On April 4, 1949, petitioners made due and timely ap­
plication for admission to the University of Florida, a 
public institution maintained and operated by the State for 
the higher education of its citizenry. Virgil I). Hawkins 
applied for admission to the School of Law, Rose Boyd 
for admission to the School of Pharmacy, Oliver Maxey 
for courses leading to a graduate degree in chemical en­
gineering and Benjamin Finley for courses leading to a 
graduate degree in agriculture. Petitioners were then and 
are now fully qualified in every lawful respect for admis­
sion to the University.

Their applications were referred to respondent Board 
of Control which governs and operates the university 
system maintained by the State. On May 13, 1949, peti­
tioners met with the Board of Control and they were 
advised that the laws of the State prohibited their admis­
sion to the University since it was maintained exclusively 
for white persons. The Board offered to pay petitioners’ 
tuitions to institutions of their choise outside the state 
(Hawkins R. 16-17; Finley R. 16; Maxey R. 16; Boyd 
R. 16).



4

Petitioners then instituted the instant action by filing- 
petitions for alternative writs of mandamus in the Supreme 
Court of Florida (R. 1). These petitions were granted 
on June 10, 1949 (R. 4). Respondents’ motions to quash 
were denied on December 8, 1949 (Hawkins R. 9; Maxey 
R. 8, Boyd R. 8-9; Finley R. 8); and on January 7, 1950 they 
filed their answers (Hawkins R. 9-24); Maxey R. 8-23; 
Boyd R. 9-24; Finley R. 9-24).

Respondents admitted that petitioners were refused 
admission to the University of Florida solely because they 
are Negroes. They also admitted that at the time of peti­
tioners’ applications the University of Florida was the 
only state institution offering the desired courses (Haw­
kins R, 11; Boyd R. 11; Maxey R. 10; Finley R. 10). Their 
answers further alleged that the Board of Control, in a 
resolution dated December 21, 1949, had authorized the 
establishment of these courses at the Florida A & M Col­
lege for Negroes (Hawkins R. 21; Maxey R. 20; Finley 
R. 20; Boyd R. 20). The Board Resolution recited that 
if these courses were not available at the College when 
petitioners made application for admission thereto, and if 
the offer of out-of-state aid should be held not to satisfy 
the State’s constitutional obligations, petitioners, would 
be admitted temporarily to the University on a segregated 
basis until such time as the courses in question are pro­
vided at the College (Hawkins R. 22-24; Maxey R. 21-23; 
Finley R. 22-24; Boyd R. 22-24)}

1 “ * * * tllere js hereby established, at the Florida Agricultural 
and Mechanical College for Negroes, schools of law, mechanical 
engineering, 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

“ * * * efforts to acquire the necessary personnel, facilities, and 
equipment for such courses be reactivated and diligently prosecuted, 
with the view of installing said personnel, facilities, and equipment 
for such courses at the Florida Agricultural and Mechanical College



5

On January 19, 1950, petitioners filed motions for per­
emptory writs of mandamus notwithstanding respondents’ 
answers (Hawkins 24-25; Finley 24-25; Boyd R. 23-24; 
Maxey 24). On August 1, 1950, the court below held these 
petitions to be in the nature of demurrers in that they ad-

for Negroes, at Tallahassee, Florida, at the earliest date possible, 
thereby to more fully comply with the Constitution and laws of the 
State of Florida; and that, in the meantime, and while diligent prep­
aration is being made to physically set up said schools and courses at 
the Florida Agricultural and Mechanical College for Negroes, at 
Tallahassee, Florida, further effort to be made to arrange with said 
applicants for out-of-state scholarships or other arrangements agree­
able to them, equal to their reasonable individual needs and affording 
them full and complete opportunity to obtain the education for which 
they have applied, where obtainable, at institutions other than Florida 
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

“ * * * in the event the court should hold that the foregoing pro­
visions 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 Mechani­
cal College for Negroes shall arrange for supplying said courses to 
its enrolled and qualified students at a Florida state operated institu­
tion of higher learning, where said courses may be given, and where 
the instructional personnel and facilities of such 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 operated institution of higher learning shall cooperate in making- 
such arrangement, to the end that there shall be available to said 
students of the Agricultural and Mechanical College for Negroes, 
substantially equal opportunity for education in said courses as may 
be provided for white students under like circumstances. In provid­
ing 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.” (Hawkins, R. 23-24; Maxey, 
R. 22-23; Finley, R. 22-24; Boyd, R. 22-23.)



6

mitted the truth of respondents’ allegations of fact and 
ruled that the allegations of the Board of Control—(1) 
that it had ordered the establishment of schools of law, 
pharmacy, graduate agriculture and chemical engineer­
ing at Florida A & M College; (2) that it had ordered 
“ reactivation” of the necessary effort to secure equip­
ment and personnel; and (3) that it offered to temporarily 
admit petitioners to the University of Florida on a segre­
gated basis until such time as these schools were actually 
in operation at the College for Negroes—sufficiently satis­
fied the State’s constitutional obligation to furnish equal 
educational opportunities (Hmvkins E. 32-38; Finley E. 26 ; 
Boyd E. 25; Maxey E. 26). The court refused, however, to 
enter a final order and retained jurisdiction of the cases 
in order to permit, petitioners or respondents to seek at 
some later date whatever further relief might be war­
ranted (Hawkins E. 38; Finley E. 26; Boyd E. 26; Maxey 
E. 25).

On August 7, 1950, petitioners reapplied to the Univer­
sity. On May 16, 1951, not having been admitted to or 
enrolled in any institution, petitioners again filed motions 
for peremptory writs of mandamus and for further relief in 
accordance with the court’s opinions. On June 15, 1951, 
these motions were denied (Hawkins E. 40-44; Maxey 
E. 27; Boyd E. 28-29; Finley E. 28). Thereupon a peti­
tion for writ of certiorari was filed in this Court, and it
was denied for want of final judgment.-----U. S. ------ ,
96 L. ed 65.

Again petitioners applied to the University (Hawkins 
E. 45; Boyd E. 31 Maxey E. 29; and Finley E. 30), hut 
to date no action has been taken on their applications. 
Motions for peremptory writs were filed for a third time 
(Hawkins E. 45; Boyd E. 31; Maxey E. 29 and Finley 
E. 30). Two years after the initial decision, the court 
below, on August 1, 1952, entered final judgments denying 
these motions, quashing the alternative writs of man­
damus previously issued and dismissing the causes.



7

Specification of Error

The court erred in refusing to grant petitioners’ 
motions for peremptory writs of mandamus and in refus­
ing to order petitioners’ admission to the University of 
Florida inasmuch as the equal protection clause of the 
Fourteenth Amendment prohibits a state from making 
racial distinctions among graduate and professional 
students in its universities.

Reasons for Allowance of the Writ

1. Insofar as the resolution of December 21, 1949 
clearly showed that the University of Florida was the only 
state institution offering courses of study in law, graduate 
agriculture, pharmacy and chemical engineering at the 
time of the August 1, 1950 opinion, petitioners were at 
that time unquestionably entitled to admission to the Uni­
versity. Missouri ex rel Gaines v. Canada, 305 U. S. 337; 
Sipuel v. Board of Regents, 332 U. S. 631.

2. The court below, in its final opinion dated August 
1, 1952, took “ judicial notice” of the fact that there is 
now in actual operation at the Florida A & M College for 
Negroes “ a duly established and tax-supported law 
school * * # at which are offered law courses similar in 
content and quality to those offered at the College of Law 
of the University of Florida * # *” (Kata-kins R. 50). 
Although no similar statement appears in the opinions 
covering the other three cases, the court said that the con­
clusions reached as to petitioner Hawkins applied equally 
to the other petitioners (Finley R. 31; Maxey R. 31; Boyd 
R. 32).

Whether the courses which petitioners seek are now 
being offered on a segregated basis is, we submit, beside 
the point. Any distinctions based upon race or color at



8

the professional and graduate school level of state uni­
versities violate the equal protection clause of the Four­
teenth Amendment. Sweatt v. Painter, 339 IT. S. 629; 
McLaurin v. Oklahoma State Regents, 339 U. S. 637; 
Wilson v. Board of Supervisors, 340 U. S. 909; McKissick 
v. Carmichael, 187 F 2d 949 (C. A. 4th 1951) ; cert. den. 
341 U. S. 951.

In the Sweatt case, the segregated law school had been 
in operation for several years; in the Wilson case the 
segregated law school had been functioning for at least 
five years; and in the McKissick case the law school had 
been in continuous operation since 1939. Yet, in all three 
decisions the schools were held not to afford equal educa­
tional opportunities and the state was required to admit 
qualified Negro applicants to the state university.

In the McLtmrin case, appellant had been admitted to 
the state university but was required to occupy a special 
seat in the classrooms, to eat at a special table in the 
cafeteria and to work at a table set apart for his exclusive 
use in the library. These restrictions, too, were held to 
be a denial of the right to equal educational opportunities, 
and the state was required to admit him to the university 
subject to the same rules and regulations applicable to all 
other students.

Here there wasn’t even a semblance of a segregated 
law school, or graduate school, or school of pharmacy when 
this litigation began. As late as the original decisions in 
these cases, there was but a bare directive by respondent 
Board of Control to “ reactivate” and diligently prosecute 
efforts to procure necessary equipment, personnel and 
facilities to get the desired courses of study functioning 
on a segregated basis. This mere declaration was there 
held sufficient compliance with the equal protection clause. 
Now the court below by judicial notice finds that petitioners 
have been provided with equality in fact.



9

We submit that under the decisions of this Court, it is 
clear that constitutional equality can only be furnished in 
graduate and professional education by the admission of 
qualified Negro applicants to state universities on the 
same terms and subject to the same conditions applicable 
to other students. Sweatt v. Painter, supra; McLaurin 
v. Oklahoma State Regents, supra.

Conclusion

W herefore, it is respectfully submitted that this peti­
tion should be granted, that the causes should be reversed 
and remanded without oral argument, and that respon­
dents should be ordered to admit petitioners to the Univer­
sity of Florida at once under the same rules and regula­
tions applicable to all other students.

R obert L. Carter,
H orace H ill,
T hurgood Marshall, 

Counsel for Petitioners.

E lwood H. Chisolm ,
of Counsel.



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