Court Cases Face Tests in
Southern Universities, 1935 *
Two years ago a Negro
student, who had graduated at the North Carolina College for
Negroes, applied for admission to the pharmacy school of the
University of North Carolina.
When his application was
refused he sought court aid to require the University to show
cause why a citizen of the State, qualified in all respects
except that he was a Negro, should not be admitted to a
tax-supported institution which offered the only course in
pharmacy in North Carolina. The immediate question was solved
when the General Assembly appropriated funds for Negro
students to continue graduate and professional studies in
Northern institutions. But the basic question is unanswered.
A similar case is already in
the courts in Maryland, where a Negro graduate of Amherst
College is seeking to enter the University of Maryland Law
School; and the question will probably be raised in Missouri
and perhaps elsewhere.
The University of Virginia
has taken no action yet. Since the graduate department has
considerable leeway in the admission of students, and since
the institution from which the applicant graduated is not on
the accredited list of the Association of American
Universities, to which the University of Virginia belongs,
technical reasons may be found for denying the application.
Virginia, whose State
constitution says that "white and colored children shall
not be taught in the same schools," is one of eighteen
States which have drawn this racial line. For grammar school,
high school and collegiate education, separate schools and
colleges are maintained.
But the point to the present
efforts, and the protest they express, is that neither
Virginia nor many other States provide graduate and
professional educational facilities for Negroes.
No effort is made to deny
the validity of the protest from the legal point of view. But
almost without exception those newspapers discussing the case,
including several which have been conspicuous in urging the
removal of many discriminations against Negroes, have pointed
out what one of them calls "the ponderous weight of
social custom" and have called into question the wisdom
of rectifying "the injustice in a manner that ignores the
deep-lying and still-operative forces that have compelled a
separation of the races in the South's educational
Lenoir Chambers, in The New York Times, September 1,
1535, IV, 6:2.
Negro Teachers in
Maryland Seek Salaries Equal to Those Paid White Teachers,
Montgomery County school
officials have until February 6 to show cause why Negro
teachers should not be paid the same salary scale as that of
William B. Gibson, Jr.,
teacher and assistant principal in the Rockville Negro
Elementary School, filed a mandamus suit in Circuit Court here
yesterday asking that the Negro teachers receive the same rate
of pay as white teachers. Judge Charles Woodward signed an
order giving the defendants until February 6 to show cause why
the petition should not be granted.
Edwin W. Broome, County
School Superintendent, said he understood the action was filed
as a test case to have the State Court of Appeals rule on a
law separating the white and Negro schools.
The New York Times, January 2, 1937,
Missouri's Position on
the Teaching of Negroes From 1847 to 1865 Is Reported,
St. Louis public schools,
beginning with their graduation exercises this month, are
celebrating their centennial. Throughout the year they will
commemorate in various ways the day in 1838 when the first
school in the city opened with two teachers for its 175
Negroes were not admitted
until 1866, when separate schools were founded for them, a
system which still persists. From 1847 to 1865 it was a crime
punishable in Missouri by fine and imprisonment to teach a
The New York Times, January 16, 1938, II 5:5.
E. Hughes 1862- 1948
Chief Justice of
Supreme Court Statesman and
jurist Charles Evans Hughes was born in Glen Falls, New
York on April 11, 1862. He graduated from Brown
University and went on to study law at Columbia
University. Announced the decision in the Gaines case
“The essence of the constitutional
right is that it is a personal one.” Gaines is
entitled to have Missouri “furnish within its borders
facilities for legal education substantially equal to
those which the State afforded for persons of the white
Missouri ex rel. Gaines
v. Canada, Registrar of the University of Missouri, et al.,
Argued November 9,
1938.-Decided December 12,1938.
1. The State of Missouri
provides separate schools and universities for whites and
negroes. At the state university, attended by whites, there is
a course in law; at the Lincoln University, attended by
negroes, there is as yet none, but it is the duty of the
curators of that institution to establish one there whenever
in their opinion this shall be necessary and practicable, and
pending such development, they are authorized to arrange for
legal education of Missouri negroes, and to pay the tuition
charges therefor, at law schools in adjacent States where
negroes are accepted and where the training is equal to that
obtainable at the Missouri State University.
Pursuant to the State's
policy of separating the races in its educational
institutions, the Curators of the state university refused to
admit a negro as a student in the law school there because of
his race; whereupon he sought a mandamus, in the state courts,
which was denied. Held:
(I ) That inasmuch as the
Curators of the state university represented the State, in
carrying out its policy, their action in denying the negro
admission to the law school was state action, within the
meaning of the Fourteenth Amendment. P.343.
(2) The action of the State
in furnishing legal education within the State to whites while
not furnishing legal education within the State to negroes,
was a discrimination repugnant to the Fourteenth Amendment. P.
If a State furnishes higher
education to white residents, it is bound to furnish
substantially equal advantages to negro residents, though not
necessarily in the same schools.
(3) The unconstitutional
discrimination is not avoided by the purpose of the State to
establish a law school for negroes whenever necessary and
practicable in the opinion of the Curators of the University
provided for negroes. P.346..
Nor are the requirements of the equal protection clause
satisfied by the opportunities afforded by Missouri to its
negro citizens for legal education in other States. P.348.
basic consideration here is not as to what sort of
opportunities other States provide, or whether they are as
good as those in Missouri, but as to what opportunities
Missouri itself furnishes to white students and denies to
negroes solely upon the ground of color. The admissibility of
laws separating the races in the enjoyment of privileges
afforded by the State rests wholly upon the equality of the
privileges which the laws give to the separated groups within
the operation of the laws of Missouri a privilege has been
created for white law students which is denied to negroes by
reason of their race. The white resident is afforded legal
education within the State; the negro resident having the same
qualifications is refused it there and must go outside the
State to obtain it. That is a denial of the equality of the
legal right to the enjoyment of the privilege which the State
has set up, and the provision for the payment of tuition fees
in another State does not remove the discrimination. P.348.
The obligation of the State to give the protection of equal
laws can be performed only where its laws operate, that is,
within its own jurisdiction. It is there that the equality of
legal right must be maintained. That obligation is imposed by
the Constitution upon the States severally as governmental
entities-each responsible for its own laws establishing the
rights and duties of persons within its borders. P.350.
The fact that there is but a limited demand in Missouri for
the legal education of negroes does not excuse the
discrimination in favor of whites. P.350.
Inasmuch as the discrimination may last indefinitely--so long
as the curators find it unnecessary and impracticable to
provide facilities for the legal education of negroes within
the State, the alternative of attendance at law schools in
other States being provided meanwhile--it can nut be excused
as a temporary discrimination. P.351.
The state Court decided this case upon the merits of the
federal question, and not upon the propriety of remedy by
Mo. 121; 113 S,W. 2d 783, reversed.
CHIEF JUSTICE HUGHES delivered the opinion of the Court. . .
judgment of the Supreme Court of Missouri is reversed and the
cause is remanded for further proceedings not inconsistent
with this opinion.
opinion of MR. JUSTICE MCREYNOLDS. MR. JUSTICE BUTLER concurs
in the above views.
U.S. 337.54. For three very significant decisions of the
Court, June 5, 1955, see below.
A Newspaper Account of
"The Gaines Decision," 1938
In a six-to-two decision,
the Supreme Court to-day ruled in effect that Lloyd Gaines, a
St. Louis Negro, must either he admitted to the Law School of
the University of Missouri or a school of law must be
established at Lincoln University maintained by Missouri for
the higher education of Negroes, to which he can be admitted.
The Hughes (Chief Justice
Hughes) finding, reversing the Missouri Supreme Court, held
that Mr. Gaines was entitled under the Fourteenth
Amendment of the Constitution to a legal education
equivalent to that provided for white students and that he had
not received "equal protection" of the laws by the
offer of Missouri to pay his tuition in an adjacent State
where there was no discrimination against Negro students.
Mr. Gaines, a graduate of
Lincoln University at Jefferson City had asked for admission
to the law school at the university. After his application was
refused, he sought a writ of mandamus to compel the registrar
and the board of curators to admit him. The Missouri courts
denied the application for mandamus, whereupon Mr. Gaines
brought the case to Washington.
Justice Hughes said the high
court was of the opinion "that petitioner was entitled to
be admitted to the law school of the State University in the
absence of other and proper provisions for his legal training
within the state."
The Chief Justice, in his
opinion, observed that it was admitted at the trial that Mr.
Gaines's work and credits at Lincoln University would qualify
him for admission to the University Law School, if he were
found otherwise eligible.
"He was refused
admission," said Justice Hughes, "upon the ground
that it was 'contrary to the constitution, laws and public
policy of the State to admit a Negro as a student in the
University of Missouri.' It appears that there are schools of
law in connection with the State universities of four adjacent
states, Kansas, Nebraska, Iowa, and Illinois. where
nonresident Negroes are admitted."
here," the opinion later said, "is not of a duty of
the State to supply legal training, or of the quality of the
training which it does supply, but of its duty when it
provides such training to furnish it to the residents of the
State upon the basis of an equality of right.
"By the operation of
the laws of Missouri a privilege has been created for white
law students which is denied to Negroes by reason of their
race. The white resident is afforded legal education within
the State; the Negro resident having the same qualifications
is refused it there~ and must go outside the State to obtain
it. That is a denial of the equality of legal right to the
enjoyment of privilege which the State has set up, and the
provision for the payment of tuition fees in another State
does not remove that discrimination.
The New York Times, December 13, 1938, 1:2.
Editorial Comment on "The
Gaines Decision," 1938
Once more the Supreme Court has spoken out
in defense of equality of human rights. It has held that as
long as the State of Missouri chooses to provide training for
law students it must not deny to Negroes, as it has done, a
privilege that it extends to white law students.
We do not think that the critics who so
often denounce the Supreme Court for "obstructing the
will of the people as expressed through their
Legislatures" will object strongly to this decision. They
will recognize in this case that the Court was acting in
accordance with the provision of the Constitution.
The decision cannot be ascribed to the
effects of the president's court enlargement campaign. The
court's record on this type of decision goes too far back for
that . . . of those critics who argue that the Supreme Court
merely defends the "plutocracy" and the
"corporations," it is charitable to assume that they
have had memories.
The New York Times, December 13,
Charles Houston was born in
Washington on 3rd September, 1895. After studying at
Dunbar High School, Amherst College and Harvard
University Law School he became a university lecturer.
In July, 1935, Walter Francis White recruited
Houston, to establish a legal department for the
National Association for the Advancement of Coloured
People (NAACP). The following year Houston appointed
Thurgood Marshall as his assistant. Over the next few
years Houston and Marshall used the courts to challenge
racist laws concerning transport, housing and education.
Houston was also professor of law and later dean of
Howard University Law School. Charles Houston died on
20th April, 1950.
Sixteen States Are Affected by "The
Gaines Case," 1938
Charles Houston, counsel for
Lloyd L. Gaines, said to-night that the Supreme Court decision
probably would increase higher education facilities for
Negroes in sixteen states which now bar them from State
Mr. Houston, who directed
the case from the time Mr. Gaines, 25, was refused admission
to the Missouri Law School in 1935, said that he was certain
legal proceedings would be started in other States to bring
about provisions for establishment of Negro professional
schools or for admission of Negroes to established schools.
The decision, he believed,
"completely knocked out as a permanent policy" the
practice of paying Negro students' tuition in other States in
place of giving them schooling in their home States.
Seven states now provide
such grants, he said: Missouri, Virginia, West Virginia,
Kentucky, Tennessee, Oklahoma and Maryland. Maryland also
provided that Negroes may attend its State university if the
subjects they want are not taught in Negro schools.
Mr. Houston said the
following States excluded Negroes from their universities and
made no other provision for graduate training: Alabama,
Arkansas, Delaware, Florida, Georgia, Louisiana, Mississippi,
North Carolina, South Carolina, and Texas.
The New York Times. December 13,
Lionel Gaines graduated from Lincoln University as an honors
student with a bachelor’s degree in history. He applied for
admission to University of Missouri's Law School in 1936. During April
of that same year the University denied his admission for Law
School because of his race. Gaines brought his case before the U.S.
On December 12, 1938 the high court rendered a landmark decision
ordering the state of Missouri to admit Gaines to the university law
school or provide a facility of equal stature for blacks within the
Gaines was last seen at his fraternity house in Chicago. One evening
around March 19, 1939 he told the housekeeper that he was going to buy
some stamps and never seen or heard from again.
Chapter VI. "The Instruction of Negroes." In Edgar W.
A Documentary History of Education in the South before 1860. Chapel Hill: The University of North Carolina, 1953
Chapter 10 "Up From Slavery: Educational and
other Rights of Negroes." In Edgar W. Knight and Clifton L. Hall.
in American Educational History. New York Appleton-Century-Crofts,
Many states had laws prohibiting
the education of blacks; here black youngsters are turned away at the
* * *
* * * * *
Salvage the Bones
A Novel by Jesmyn Ward
On one level, Salvage the Bones is a simple story about a poor black family that’s about to be trashed by one of the most deadly hurricanes in U.S. history. What makes the novel so powerful, though, is the way Ward winds private passions with that menace gathering force out in the Gulf of Mexico. Without a hint of pretension, in the simple lives of these poor people living among chickens and abandoned cars, she evokes the tenacious love and desperation of classical tragedy. The force that pushes back against Katrina’s inexorable winds is the voice of Ward’s narrator, a 14-year-old girl named Esch, the only daughter among four siblings. Precocious, passionate and sensitive, she speaks almost entirely in phrases soaked in her family’s raw land. Everything here is gritty, loamy and alive, as though the very soil were animated. Her brother’s “blood smells like wet hot earth after summer rain. . . . His scalp looks like fresh turned dirt.” Her father’s hands “are like gravel,” while her own hand “slides through his grip like a wet fish,” and a handsome boy’s “muscles jabbered like chickens.” Admittedly, Ward can push so hard on this simile-obsessed style that her paragraphs risk sounding like a compost heap, but this isn’t usually just metaphor for metaphor’s sake. She conveys something fundamental about Esch’s fluid state of mind: her figurative sense of the world in which all things correspond and connect. She and her brothers live in a ramshackle house steeped in grief since their mother died giving birth to her last child. . . . What remains, what’s salvaged, is something indomitable in these tough siblings, the strength of their love, the permanence of their devotion.—
* * *
Hopes and Prospects
By Noam Chomsky
In this urgent new book, Noam Chomsky
surveys the dangers and prospects of our
early twenty-first century. Exploring
challenges such as the growing gap
between North and South, American
exceptionalism (including under
President Barack Obama), the fiascos of
Iraq and Afghanistan, the U.S.-Israeli
assault on Gaza, and the recent
financial bailouts, he also sees hope
for the future and a way to move
forward—in the democratic wave in Latin
America and in the global solidarity
movements that suggest "real progress
toward freedom and justice." Hopes and
Prospects is essential reading for
anyone who is concerned about the
primary challenges still facing the
human race. "This is a classic Chomsky
work: a bonfire of myths and lies,
sophistries and delusions. Noam Chomsky
is an enduring inspiration all over the
world—to millions, I suspect—for the
simple reason that he is a truth-teller
on an epic scale. I salute him." —John
In dissecting the rhetoric and logic of
American empire and class domination, at
home and abroad, Chomsky continues a
longstanding and crucial work of
elucidation and activism . . .the
writing remains unswervingly rational
and principled throughout, and lends
bracing impetus to the real alternatives
* * * * *
The White Masters of the
The World and Africa, 1965
By W. E. B. Du Bois
W. E. B. Du Bois’
Arraignment and Indictment of White Civilization
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Ancient African Nations
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The Death of Emmett Till by Bob Dylan
The Lonesome Death of Hattie Carroll
Only a Pawn in Their Game
Rev. Jesse Lee Peterson Thanks America for
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10 January 2012