Court Cases Face Tests in Southern Universities

Court Cases Face Tests in Southern Universities


ChickenBones: A Journal

for  Literary & Artistic African-American  Themes




Up From Slavery: A Documentary History of Negro Education

Compiled By Rudolph Lewis

Lloyd Gaines



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 establishments.”

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, 1937 

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 white teachers.

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, 15:2


Missouri’s Position on the Teaching of Negroes From 1847 to 1865 Is Reported, 1938 

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 children.

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 Negro anything.

The New York Times, January 16, 1938, II 5:5.

Charles 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 race.”


Missouri ex rel. Gaines v. Canada, Registrar of the University of Missouri, et al., 1938 


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. 344.

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..

4) 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.

The 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 State. 

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 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.

(5) 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.

(6) 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.

(7) 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.

2. The state Court decided this case upon the merits of the federal question, and not upon the propriety of remedy by mandamus. P.352.

342 Mo. 121; 113 S,W. 2d 783, reversed.

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

The judgment of the Supreme Court of Missouri is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.


Separate opinion of MR. JUSTICE MCREYNOLDS. MR. JUSTICE BUTLER concurs in the above views.

355 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.”

“The question 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, 1938, 24:1.

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 professional schools.

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, 193t, 10:3.


Lloyd 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. Supreme Court. 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 state border. 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. Knight.. 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. Readings in American Educational History. New York Appleton-Century-Crofts, Inc., 1951.

Many states had laws prohibiting the education of blacks; here black youngsters are turned away at the school door

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