Alston et al. v. School Board of the City of Norfolk (Virginia) et al., 1940

Circuit Court of Appeals, Fourth Circuit. June 18,1940.

Fixing salaries of Negro teachers in public schools at a lower rate than that paid to white teachers of equal qualifications and experience, and performing the same duties on the sole basis of race and color, is violative of the "due process" and "equal protection" clauses of the Fourteenth Amendment.

The action was dismissed in the District Court of the United States for the Eastern District of Virginia, at Norfolk; Luther B. May, Judge Plaintiffs appealed.

Taken before Circuit Judges Parker, Soper, and Dobie and reversed,

Judge Parker:

Melvin 0. Alston and the Norfolk Teachers' Association, composed of the Negro school teachers of that city, against the school board and the superintendent of schools of Norfolk. The purpose of the action was to obtain a declaratory judgment, to the effect that the policy of the defendants in maintaining a salary schedule which fixes the salaries of Negro teachers at a lower rate than that paid to white teachers of equal qualifications and experience, and performing the same duties and services, on the sole basis of race and color, is violative of the due process and equal protective clauses of the Fourteenth Amendment, and also to obtain an injunction restraining defendants from making any distinction on the ground of race and color in fixing the salaries of public school teachers in Norfolk.

The case was dismissed by the lower court on the ground that Alston and the School Board were the only necessary parties to the cause and that Alston had waived such constitutional rights as he was seeking to enforce by having entered into a written contract with the School Board to teach for a year at the price fixed in the contract.

On the appeal presented by plaintiffs three questions arose: (I) Whether upon the face of the complaint an unconstitutional discrimination was shown in the fixing of the salaries of school teachers by the defendants; (2) Whether the rights of the plaintiffs were infringed by such discrimination; and (3) Whether plaintiffs waived their right to complain of the discrimination by entering into contracts with the School Board for the current year.

The Circuit Court of Appeals held that

1. Unconstitutional.

2. Rights of plaintiffs were infringed.

3. The fact that the plaintiffs had entered into contract with the School Board to teach for a certain salary for the current year does not preclude them from asking relief.

The order appealed from was reversed and the cause "remanded for further proceedings not inconsistent herewith."

Federal Reporter, Second Series. Vol. 112. F.2d. pp. 592.5t. U. 5. Supreme Court refused to hear the case. Denied certiorari. North Carolina, in which no litigation on equal salaries was brought in 1944 equalized salaries of Negroes and whites, the first Southern state to do to, as a moral and legal obligation of the state and in fulfilling a pledge earlier made to the Negroes of that commonwealth. State officials and representative Negroes chose to achieve equalization by agreement rather than by litigation. In 1950 several of the Southern states were moving toward equalized salaries.

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The University of Texas Must Admit Negroes, 1950

HERMAN [I.E. HEMAN] MARION SWEATT, PETITIONER VS. THEOPHILIS SHICKEL PAINTER, ET AL.: [IN THE] SUPREME COURT OF THE UNITED STATES, OCTOBER TERM, 1948.

Sweatt v. Painter (339 U.S. 629)

Heman Marion Sweatt (second from right) volunteered to be the plaintiff in the desegregation lawsuit that the NAACP was formulating against The University of Texas in the mid-1940s. Prominent African American attorneys were involved, including (l to r) Harry Bellinger, W.J. Durham, and C.B. Bunkley.

MR. CHIEF JUSTICE VIN5ON delivered the opinion of the Court.

In the instant case, petitioner filed an application for admission to the University of Texas Law School for the February, 1946 term. His application was rejected solely because he is a Negro. Petitioner thereupon brought this suit for mandamus against the appropriate school officials, respondents here, to compel his admission. At that time, there was no law school in Texas which admitted Negroes.

The State trial court recognized that the action of the State in denying petitioner the opportunity to gain a legal education while granting it to others deprived him of the equal protection of the laws guaranteed by the Fourteenth Amendment. The court did not grant the relief requested, however, but continued the case for six months to allow the State to supply substantially equal facilities. At the expiration of the six months, in December, 1946, the court denied the writ on the showing that the authorized university officials had adopted an order calling for the opening of a law school for Negroes the following February. While petitioner's appeal was pending, such a school was made available, but petitioner refused to register therein. The Texas Court of Civil Appeals set aside the trial court's judgment and ordered the cause "remanded generally to the trial court for further proceedings without prejudice to the right of any party to this suit." . . .

The University of Texas Law School, from which petitioner was excluded, was staffed by a faculty .of sixteen. full-time and three part-time professors, some of whom are nationally recognized authorities in their field. Its student body numbered 850. The library contained over 65,000 volumes. Among the other facilities available to the students were a law review, moot court facilities, scholarship funds, and Order of the Coif affiliation. The school's alumni occupy the most distinguished positions in the private practice of the law and in the public life of the State. It may properly be considered one of the nation's ranking law schools.

The law school for Negroes which was to have opened in February, 1947, would have had no independent faculty or library. The teaching was to be carried on by four members of the University of Texas Law School faculty, who were to maintain their offices at the University of Texas while teaching at both institutions. Few of the 10,000 volumes ordered for the library had arrived; nor was there any full-time librarian. The school lacked accreditation.

Since the trial of this case, respondents report the opening of a law school at the Texas State University for Negroes. It is apparently on the road to full accreditation. It has a faculty of five full-time professors; a student body of 23; a library of some 16,500 volumes serviced by a full-time staff; a practice court and legal aid association; and one alumnus who has become a member of the Texas Bar.

Whether the University of Texas Law School is compared with the original or the new law school for Negroes, we cannot find substantial equality in the educational opportunities offered white and Negro law students by the State. In terms of number of the faculty, variety of courses and opportunity for specialization, size of the student body, scope of the library, availability of law review and similar activities, the University of Texas Law School is superior.

What is more important, the University of Texas Law School possesses to a far greater degree those qualities which are incapable of objective measurement but which made for greatness in a law school. Such qualities, to name but a few, include reputation of the faculty, experience of the administration, position and influence of the alumni, standing in the community, traditions and prestige. It is difficult to believe that one who had a free choice between these law schools would consider the question close.

In accordance with these cases, petitioner may claim his full constitutional right: legal education equivalent to that offered by the State to students of other races. Such education is not available to him in a separate law school as offered by the State. We cannot, therefore, agree with respondents that the doctrine of Plessy v. Ferguson, 163 U.S. 537 (1896), requires affirmance of the judgment below. Nor need we reach petitioner's contention that Plessy v. Ferguson should be reexamined in the light of contemporary knowledge respecting the purposes of the Fourteenth Amendment and the effects of racial segregation. .

We hold that the Equal Protection Clause of the Fourteenth Amendment requires that petitioner be admitted to the University of Texas Law School. The judgment is reversed and the cause is remanded for proceedings not inconsistent with this opinion.

The United States Law Week, June 5, 1959, pp. 4405.07.

Heman Marion Sweatt (1912-1982), an African American postal worker from Houston was denied admission to the University of Texas School of Law in 1946. The NAACP's legal team, led by Thurgood Marshall, carried the legal battle to the United States Supreme Court, which struck down the system of "separate but equal" graduate school education and paved the way for the landmark decision of Brown v. Board of Education in 1954 Heman Marion Sweatt registering for classes at the University of Texas, September 1950. The University's refusal to admit Sweatt in 1946 because of his race resulted in a four-and-a-half year legal battle that ended in June 1950 when the U. S. Supreme Court decided Sweatt v. Painter, which barred segregation in the nation's law schools.

Texas Southern University was established in 1947 under Texas State Senate Bill 140, granting it authority to offer courses of higher learning in pharmacy, dentistry, journalism, education, arts and sciences, literature, law, medicine, and other professional courses. The University, as established by the Fiftieth Texas Legislature, was originally known as "Texas State University for Negroes." However, the name was changed by the legislature in 1951 to Texas Southern University. The School of Law, as well as the University at large, was undoubtedly created as a consequence of a 1946 lawsuit brought by Heman M. Sweatt.

Under the Texas Constitution, which required separate but equal treatment, Mr. Sweatt was refused admission to the University of Texas Law School because he was black. As a result the legislature provided for an interim and separate law school for Negroes. During its first academic year, the law school was housed in Austin, Texas, and was subsequently transferred to the new university campus in Houston. Since that time, the School of Law has become an integral part of the university campus. Prior to 1976, the law school was housed in Hannah Hall - the University's administrative complex. On February 14, 1976, the school was formally designated as the Thurgood Marshall School of Law in honor of the distinguished former U.S. Supreme Court Justice and was moved to its present location. It is appropriate to note that Justice Marshall, at the time chief counsel for the NAACP Legal Defense Fund, successfully argued Heman M. Sweatt's case before the United States Supreme Court.