Sweatt v. Painter , 1948 Tex. App. LEXIS 1147 ( 1948 )

McClendon, chief justice.

February 26, 1946, Heman Marion Sweatt, a Negro, applied for admission to the School of Law of the University of Texas, as a first year student.. Admittedly, he possessed every essential qualification for admission, except that of race, upon which ground alone his application was denied, under Sec. 7 of art. 7 of the Texas Constitution, Vernon’s Ann.St., which reads: “Separate schools shall be provided for the white and colored children, and impartial provision shall be made for both.”

May 16, 1946, he filed this suit, as Relator, for a writ of mandamus, against the President, members of the Board of Regents, Dean of the School of Law, and Registrar of the University of Texas, as Respondents, to compel his admission, upon the ground that its denial constituted an infringement of rights guaranteed to him under the equal protection clause of the Fourteenth Amendment to the Federal Constitution. In a trial to the court the sought relief was denied and Relator has appealed.

At the outset it should be borne in mind that the validity of state laws which require segregation, of races in state supported schools, as being, on the ground of segregation 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.¹

The gist of these decisions is embodied in the following excerpts from the opinion in Plessy v. Ferguson (Mr. Justice Brown² writing) :

“The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, -but, in the nature of things, it could not have.been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a 'commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation, in places where they are liable to be brought into contact, do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for white and colored children, which have been held to be a valid exercise of the legislative power even by courts of states where the political rights of the colored race have been longest and most earnestly enforced.

.* . * * .* • * *

“The distinction between laws interfering with the political equality of the negro and those requiring the separation of the two races in schools, theaters, and railway carriages has been frequently drawn by the courts.”

This holding had the express approval 'of Mr. Justice Harlan in the Cumming case, of Mr. Justice Taft in the Gong Lum case, and of Mr. Chief Justice Hughes in the Canada case. Its approval is implicit in the latest enunciation of that court on the subject (January 12, 1948) in the Sipuel case.

Relator’s brief asserts:

“The record in the instant case for the first time presents testimony and documentary evidence clearly establishing that:

“(1) There is no rational basis for racial classification for school purposes.

“(2) Public schools, ‘separate but equal’ in theory are in fact and in practical administration consistently unequal and discriminatory.

“(3) It is impossible to have the equality required by the Fourteenth Amendment in a public school system which relegates citizens of a disadvantaged racial minority group to separate schools.”

And further:

“The doctrine of racially ‘separate but equal’ public facilities is merely a constitutional hypothesis which has no application where racial segregation is shown to be inconsistent with equality.” ,

* t' * * * *

“Although separate school laws have been enforced by several states, an examination of the cases in the United States Supreme Court and lower courts will demonstrate that these statutes have never been seriously challenged nor their validity examined and tested upon a record adequately presenting the critical and decisive issues such as are presented by the record in. this case:

“(1) Whether there is a rational basis for racial classification for school purposes.

“(2) Whether public schools, 'separate but equal’ in theory are in fact and practical administration consistently unequal and discriminatory.

“(3) Whether it is possible to have the equality required by the Fourteenth Amendment in a public school system which relegates citizens of a disadvantaged racial minority group to separate schools.”

Implicit in these quotations is the assertion that race segregation in public schools, at least in the higher and professional fields, inherently is discriminatory within the meaning of the Fourteenth Amendment, and cannot be made otherwise.

This assertion in effect impeaches the soundness of the various decisions of the Federal Supreme Court which hold to the contrary, as being predicated upon a purely abstract and theoretical hypothesis, wholly unrelated to reality. To so hold would convict the great jurists who rendered those decisions of being so far removed from the actualities involved in the race problems of our American life as to render them incapable of evaluating the known facts of contemporaneous and precedent history as they relate to those problems.

It is of course of the very essence of the validity of segregation laws that they provide for each segregated group or class facilities and opportunities the equivalent, or (as often stated) substantial equivalent of those provided for the other group or class. Our constitution (quoted above) so provides. The brief asserts that there can be no “substantial equality,” the two words being in themselves incompatible. This is of course true in pure, as distinguished from applied, mathematics. “Equality” like all abstract nouns must be defined and construed according 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; at least not demonstrably so. Equations in nature are manifestly only approximations (working hypotheses) ; their accuracy depending upon a proper evaluation of their units or standards of value as applied to the subject matter involved and the objectives 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, employ the expressions “equal” and “substantially equal” and as synonymous. The framers of the Texas constitution of 1876 recognized the necessity (both inherent and under the 14th Amendment) of “equal protection” in the must (shall) requirement (art. 7, Sec. 7) of “impartial provision” for “both” races. The question, and we think the controlling one, which this appeal presents is whether under the record showing in this case 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 providing in the University of Texas Law School. ^We are not dealing here with abstractions but with realities^

In the latter portion of Relator’s brief the following proposition is asserted: “The expert testimony introduced at the trial establishes that there is no rational justification for segregation-in professional education and that substantial discrimination is a necessary consequence of any separation of professional students on the basis of color.”

The supporting evidence deals generally with the subject of race segregation in professional and other schools from biological and other viewpoints, giving conclusions of scientists, educators and other experts in the several fields, and data compiled and conclusions reached in reports of surveys, etc. In so far as this evidence is directed against the policy of segregation the subject dealt with is outside the judicial function. The people of Texas, through their constitutional and legislative enactments, have determined that policy, the factual 'bases of which are not subjects of judicial review. See Watts v. Mann, Tex.Civ.App., 187 S.W.2d 917, error refused; 11 Am.Jur., §§ 142-144, pp. 82, et seq. The only appropriate judicial inquiry here is whether the facilities furnished and made available by the State to Relator as an applicant for a first year law course meet the test of due process under the Fourteenth Amendment.

Nor are we concerned here with whether the State has discharged its obligations under that amendment in other segregated fields or branches of education.

For these reasons we hold that the trial court correctly excluded: (1) Relator’s pleadings as to what happened at Prairie View in 1937 (Relator’s first point) ; (2) evidence of Dr. Thompson regarding facilities at other state institutions and colleges (Relator’s second point) ; and (3) evidence of Donald Murray regarding what happened at the University of Maryland in 1929-32 (Relator’s third point).

The record shows that this cause was called for trial June 17, 1946, and after a hearing the court passed an interlocutory order, which, after reciting the (below) 1945 Act, provided that, if by December 17, 1946, “a course for legal instruction substantially equivalent to that offered at the University of Texas is established and made available to the relator within the State of Texas in an educational institution supported by the State, the writ of mandamus sought herein will be denied, but if such a course of legal instruction is not so established and made available, the writ of mandamus will issue.” The cause was ordered held on the docket until December 17, 1946, on which date final judgment was entered denying the writ, upon a showing by Respondents that the A & M (Texas Agricultural and Mechanical College) Board had provided for a first year law school at Houston to open with the February 1947 semester, as a branch of Prairie View University. This judgment was set aside by this court March 26, 1947, and the cause remanded generally, without prejudice to the rights of either party, upon agreement of counsel in open court. Thereafter (May 17-June 17, 1947) the cause was again tried, the judgment denying the writ, upon the specific finding’ by the court that in compliance with the Act of 1947 (noted below) the Respondents: “ * * * have established the School of Law of the Texas State University for Negroes in Austin, Texas, with substantially equal facilities and with the same entrance, classroom study, and graduation requirements, and with the same courses and the same instructors as the School of Law of The University of Texas; that such new law school offered to Relator privileges, advantages, and opportunities for the study of law substantially equivalent to those offered by the State to white students at the University of Texas; that Relator, although duly notified that he was eligible and would be admitted to said law school March 10, 1947, declined to register; that from his own testimony, Relator would not register in a separate law school no matter how equal it might be and not even if the separate school affords him identical advantages and opportunities for the study of law equal to those furnished by the State to the white students of the Law School of the University of Texas; and the constitutional right of the State to provide equal educational opportunities 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 afforded equal if not better opportunities for the study of law in such separate school, the petition for Writ of Mandamus should be denied.”

The sufficiency of the evidence to support' these findings and conclusions to the extent that the stated facilities provided by the State meet the requirements of due process, constitutes. the controlling question in the case; upon which issue the record shows: Relator’s application was the first ever made by a Negro for admission to the University of Texas Law School. It also appears to have been the first application of any Negro for admission to any other department or school of the University of Texas. The Prairie View Normal and Industrial School for Negroes was established in the 1870’s, and was operated under the governing board of the A. & M. Neither Prairie View nor any other state supported school for Negroes offered any courses in law. The name of Prairie View was changed by the Act of June 1, 1945, to Prairie View University; and it was provided: “Whenever there is any demand for same, the Board of Directors of the Agricultural and Mechanical College, in addition to the courses of study now authorized for said institution, is authorized to provide for the establishment of courses in law, medicine, engineering, pharmacy, journalism, or any other generally recognized college course taught at the University of Texas, in said Prairie View University, which courses shall be substantially equivalent to those offered at the University of Texas.” Acts 49th Leg., Ch. 308, p. 506, Vernon’s Ann. Civ. St. art. 2643a.

The Act of 1947, S.B. 140, Ch. 29, Acts 50th Leg., Vernon’s Ann. Civ. St. art. 2643b, was passed and became effective March 3, 1947. It provided (inter alia) for the establishment of “The Texas State University for Negroes” to he located at Houston, with a governing board of nine “to consist of both white and negro citizens of this state,” and appropriated $2,000,000 for land, buildings and equipment, and $500,000 per annum for maintenance for the biennium ending August 31, 1949. And that: “The Texas State University for Negroes shall offer all other courses of higher learning, including, but without limitation, (other than as to those professional courses designated for The Prairie View Agricultural and Mechanical College), arts and sciences, literature, law, medicine, pharmacy, dentistry, journalism, education, and other professional courses, all of which shall be equivalent to those offered at The University of Texas. Upon demand being made by any qualified applicant for any present or future course of instruction offered at The University of Texas, or its branches, such course shall be established or added to the curriculum of the appropriate division of the schools hereby established in order that the separate universities for Negroes shall at all times offer equal educational opportunities and training as that available to other persons of this state.” Vernon’s Ann. Civ. St. art. 2643b, § 2.

And further: “Sec. 11. In the interim between the effective date of this Act and the organization, establishment and operation of the Texas State University for Negroes at Houston, upon demand heretofore or hereafter made by any qualified applicant for instruction in law at the University of Texas, the Board of Regents of the University of Texas is authorized and required to forthwith organize and establish a separate school of law at Austin for ne-groes to be known as the ‘School of Law of the Texas State University for Negroes’ and therein provide instruction in law equivalent to the same instruction being offered in law at the University of Texas. The Board of Regents of the University of Texas shall act as the governing board of such separate law school until such time as it is transferred to the control of the Board of Directors of the Texas State University for Negroes.” Vernon’s Ann.Civ. St. art. 2643b note.

For this latter purpose $100,000 was appropriated.

Pursuant to this Act the school for first year Negro law students was established at Austin. Relator was notified amply in advance of its opening on March 10, 1947, but did not and has not attended. A ré-sumé of the evidence showing the facilities, opportunities and advantages afforded by this school and a comparison thereof with those afforded by the University of Texas School of Law is set forth in an appendix to this opinion, 210 S.W.2d 448, copied in the main from Respondents’ brief, and approved and adopted by us as a fair statement of the evidence in this respect.

The evidence shows, on the part of the State of Texas, an enormous outlay both in funds and in carefully and conscientiously planned and executed endeavor, in a sincere and earnest bona fide effort to afford every reasonable and adequate facility and opportunity guaranteed to Relator under the Fourteenth Amendment, within the State’s settled policy (constitutional and statutory) of race segregation in its public schools. We hold that the State has effectually accomplished that objective.

The trial court’s judgment is affirmed.

Affirmed.

1 Hall v. DeCuir, 1878, 95 U.S. 485, 24 L.Ed. 547; Plessy v. Ferguson, 1896, 163 U.S. 537, 16 S.Ct. 1138, 1140, 41 L.Ed. 256; Cumming v. County Board of Education, 1899, 175 U.S. 528, 20 S.Ct. 197, 44 L.Ed. 262; McCabe v. A. T. &. S. F. R. Co., 1914, 235 U.S. 151, 35 S.Ct. 69, 59 L.Ed. 169; Gong Lum v. Rice, 1927, 275 U.S. 78, 48 S.Ct. 91, 72 L.Ed. 172; Missouri v. Canada, 1938, 305 U.S. 337, 59 S.Ct. 232, 83 L.Ed. 208; Sipuel v. Oklahoma, 1948, 68 S.Ct. 299, 92 L.Ed. -.

A like uniformity is to be found in decisions of other Federal and State Courts. Their citation is not of importance here.

2 Mr. Justice Henry Billings Brown was born in Lee, Massachusetts, March 2, 1836. His academic education was at Tale, and among his fellow students were Chauncey M. Dopew and his later associates on the Supreme bench, Mr. Justice Brewer and Mr. Justice Shiras. His education in law was obtained at Tale and Harvard. In 1859 he moved to Michigan, where he practiced law until 1861. He then served as Deputy U. S. Marshal and Assistant District Attorney until 1868, when he became Judge of the Wayne County Circuit Court. In 1875 he was appointed U. S. District Judge by President Grant, and in 1890 Associate Justice of the U. S. Supreme Court by President Benjamin Harrison.