210 S.W.2d 442 (Tex.Civ.App. 1948), 9684, Sweatt v. Painter

Docket Nº9684.
Citation210 S.W.2d 442
Opinion JudgeMcCLENDON, Chief Justice.
Party NameSWEATT v. PAINTER et al.
AttorneyW. J. Durham, of Dallas, and Thurgood Marshall, of New York City, for appellant. Price Daniel, Atty. Gen., and Jackson Littleton and Joe Greenhill, Asst. Attys. Gen., for appellees.
Case DateFebruary 25, 1948
CourtCourt of Appeals of Texas, Court of Civil Appeals of Texas

Page 442

210 S.W.2d 442 (Tex.Civ.App. 1948)

SWEATT

v.

PAINTER et al.

No. 9684.

Court of Civil Appeals of Texas, Austin.

February 25, 1948

Rehearing Denied March 17, 1948.

Appeal from District Court, one hundred twenty sixth Judicial District, Travis County; Roy C. Archer, Judge.

Mandamus proceeding by Heman Marion Sweatt against Theophilus Shickel Painter and others, members of the Board of Regents, Dean of School of Law and Registrar of University of Texas to compel admission of relator to School of Law of the university of Texas. From an adverse judgment, the relator appeals.

Affirmed.

On Motion for Rehearing.

Page 443

W. J. Durham, of Dallas, and Thurgood Marshall, of New York City, for appellant.

Price Daniel, Atty. Gen., and Jackson Littleton and Joe Greenhill, Asst. Attys. Gen., for appellees.

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

Page 444

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 Brown 2 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.'

* * *

* * *

'Although separate school laws have been enforced by several states, an examination

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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

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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...

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8 practice notes
  • 237 F.Supp.2d 721 (W.D.Tex. 2002), Civ. A.SA-02-CA-618, Save Our Aquifer v. City of San Antonio
    • United States
    • Federal Cases United States District Courts 5th Circuit Southern District of Texas
    • December 16, 2002
    ...to desegregate boxing by granting permission to Mr. Harvey to engage in fights with members of the white race); Sweatt v. Painter, 210 S.W.2d 442 (Tex.Civ.App.-Austin 1948), rev'd, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114 (1950) (desegregating law school admissions by reversing lower court......
  • 47 So.2d 608 (Fla. 1950), State ex rel. Hawkins v. Board of Control of Fla.
    • United States
    • Florida Supreme Court of Florida
    • August 1, 1950
    ...332 U.S. 631, 68 S.Ct. 299, 92 L.Ed. 247, in 199 Okl. 586, 190 P.2d 437; Sweatt v. Painter, 70 S.Ct. 848, reversing Tex.Civ.App., 210 S.W.2d 442. The mere fact that under the plan the Board of Control proposes to enroll the relator in the Florida Agricultural and Mechanical College for Negr......
  • 779 F.Supp.2d 542 (W.D.Tex. 2011), C. A. SA-08-CA-154-FB, Aquifer Guardians in Urban Areas v. Federal Highway Admin.
    • United States
    • Federal Cases United States District Courts 5th Circuit Southern District of Texas
    • April 22, 2011
    ...in New Braunfels [Texas] in the mid 1950s" ). [6] Herman Marion Sweatt volunteered to be the plaintiff in Sweatt v. Painter, 210 S.W.2d 442 (Tex.Civ.App.-Austin, 1948, writ ref'd), rev'd, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114 (1950). the desegregation lawsuit which the NAACP formul......
  • Santamaria v. Dallas Independent School District, 111606 TXNDC, 3:06-CV-692-L
    • United States
    • Federal Cases United States District Courts 5th Circuit Northern District of Texas
    • November 16, 2006
    ...of law substantially equivalent to those offered by the State to white students at The University of Texas." Sweatt v. Painter , 210 S.W.2d 442, 445 (Tex.Civ.App. [Austin] 1948, writ ref'd). The Supreme Court reversed, holding that the legal education offered Mr. Sweatt at Texas State ......
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7 cases
  • 237 F.Supp.2d 721 (W.D.Tex. 2002), Civ. A.SA-02-CA-618, Save Our Aquifer v. City of San Antonio
    • United States
    • Federal Cases United States District Courts 5th Circuit Southern District of Texas
    • December 16, 2002
    ...to desegregate boxing by granting permission to Mr. Harvey to engage in fights with members of the white race); Sweatt v. Painter, 210 S.W.2d 442 (Tex.Civ.App.-Austin 1948), rev'd, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114 (1950) (desegregating law school admissions by reversing lower court......
  • 47 So.2d 608 (Fla. 1950), State ex rel. Hawkins v. Board of Control of Fla.
    • United States
    • Florida Supreme Court of Florida
    • August 1, 1950
    ...332 U.S. 631, 68 S.Ct. 299, 92 L.Ed. 247, in 199 Okl. 586, 190 P.2d 437; Sweatt v. Painter, 70 S.Ct. 848, reversing Tex.Civ.App., 210 S.W.2d 442. The mere fact that under the plan the Board of Control proposes to enroll the relator in the Florida Agricultural and Mechanical College for Negr......
  • 779 F.Supp.2d 542 (W.D.Tex. 2011), C. A. SA-08-CA-154-FB, Aquifer Guardians in Urban Areas v. Federal Highway Admin.
    • United States
    • Federal Cases United States District Courts 5th Circuit Southern District of Texas
    • April 22, 2011
    ...in New Braunfels [Texas] in the mid 1950s" ). [6] Herman Marion Sweatt volunteered to be the plaintiff in Sweatt v. Painter, 210 S.W.2d 442 (Tex.Civ.App.-Austin, 1948, writ ref'd), rev'd, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114 (1950). the desegregation lawsuit which the NAACP formul......
  • Santamaria v. Dallas Independent School District, 111606 TXNDC, 3:06-CV-692-L
    • United States
    • Federal Cases United States District Courts 5th Circuit Northern District of Texas
    • November 16, 2006
    ...of law substantially equivalent to those offered by the State to white students at The University of Texas." Sweatt v. Painter , 210 S.W.2d 442, 445 (Tex.Civ.App. [Austin] 1948, writ ref'd). The Supreme Court reversed, holding that the legal education offered Mr. Sweatt at Texas State ......
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