Booker v. State of Tennessee Board of Education, 12775.

• Decision Date: 14 January 1957
• Docket Number: No. 12775.,12775.
• Citation: 240 F.2d 689
• Parties: Ruth BOOKER, an Infant, by Dovie Booker, Her Mother and Next Friend, et al., Appellants, v. STATE OF TENNESSEE BOARD OF EDUCATION et al., Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

240 F.2d 689 (1957)

Ruth BOOKER, an Infant, by Dovie Booker, Her Mother and Next Friend, et al., Appellants, v. STATE OF TENNESSEE BOARD OF EDUCATION et al., Appellees.

No. 12775.

United States Court of Appeals Sixth Circuit.

January 14, 1957.

Robert L. Carter, New York City (J. F. Estes, B. L. Hooks, A. W. Willis, Jr., Memphis, Tenn., and Z. Alexander Looby, Nashville, Tenn., on the brief; H. T. Lockard, Memphis, Tenn., Thurgood Marshall, New York City, of counsel), for appellants.

Nat Tipton, Advocate Gen. of Tennessee, Nashville, Tenn. (George F. McCanless, Atty. Gen. of Tennessee, Allison B. Humphreys, Jr., Nashville, Tenn., on the brief), for appellees.

Before SIMONS, Chief Judge, and ALLEN and MILLER, Circuit Judges.

ALLEN, Circuit Judge.

This case arises upon complaint of five plaintiffs, members of the colored race, praying for a permanent injunction to restrain the Board of Education of the State of Tennessee, officials of such Board, and the president and registrar of Memphis State College, from refusing to admit plaintiffs to Memphis State College solely because of their race.¹ The facts are not in controversy. The findings of fact entered by the District Court are given in the margin.²

All plaintiffs are residents of the city of Memphis, in the Western Division of the State of Tennessee, and also in the district served by Memphis State College, a public educational institution of the State of Tennessee. As to educational requirements it is conceded that plaintiffs are fully qualified for admission to the college and that they have been denied admission solely because of their color. It is the policy of the State of Tennessee to maintain Memphis State College for the education, exclusively, of white persons. This policy is required under Article 11, Section 12, of the Tennessee Constitution of 1870, the pertinent part of which reads as follows:

"* * * No school established or aided under this section shall allow white and negro children to be received as scholars together in the same school."

It also is required under Sections 11395 and 11396 of the Code of Tennessee which read as follows:

"Unlawful for white and colored persons to attend same school. — It shall be unlawful for any school, academy, college, or other place of learning to allow white and colored persons to attend the same school, academy, college, or other place of learning.

"Unlawful for teacher to allow such mixed attendance or to teach them in same class. — It shall be unlawful for any teacher, professor, or educator in any college, academy, or school of learning, to allow the white and colored races to attend the same school, or for any teacher or educator, or other person to instruct or teach both the white and colored races in the same class, school, or college building, or in any other place or places of learning, or allow or permit the same to be done with their knowledge, consent, or procurement."

The complaint prayed that the District Court convene a three-judge district court under Title 28, U.S.C., Sections 2281 and 2284, 28 U.S.C.A. §§ 2281, 2284, to hear the case, but this application was refused. Plaintiffs contend that under the Federal Constitution, particularly the Fourteenth Amendment, the validity of the Tennessee segregation statutes and state constitution was directly involved and a three-judge court was therefore required. However, the gist of the controversy was factual, namely, the existence of alleged discrimination under the Fourteenth Amendment. Moreover, the constitutional contention no longer presents a question of substance. It is essential to the jurisdiction of the federal court in three-judge cases that a substantial federal question be presented. Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 4, 78 L.Ed. 152. The Supreme Court there pointed out that a federal question may be unsubstantial "because it is `obviously without merit' or because `its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject * * *.'" This is the precise situation here presented. The previous decisions of the Supreme Court, Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, and Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083, have foreclosed the subject. As declared in the latter decision, all provisions of federal, state, or local law requiring or permitting discrimination on the ground of race or color in public educational institutions must yield to the principle that racial discrimination in public education is unconstitutional. The District Court correctly held that the invalidity of the Tennessee constitutional provisions and statutes providing for segregation is "patent" and that a three-judge court was not required. In accord with this conclusion are Wichita Falls Junior College District v. Battle, 5 Cir., 204 F.2d 632, certiorari denied 347 U.S. 974, 74 S.Ct. 783, 98 L.Ed. 1114, and the final decision in Board of Supervisors, etc., v. Tureaud, 5 Cir., 228 F.2d 895. This case was heard en banc and six judges concurred in the conclusion that a hearing by a three-judge court was not required to decide a factual question of discrimination.

As the District Court had jurisdiction it properly proceeded with the trial. The principal issue was factual, namely, whether continuation of discrimination prohibited by the equal protection clause of the Fourteenth Amendment was contemplated by the proposed plan. The District Court decided that the plan devised by defendants for the integration of the races is in all respects fair and reasonable, and denied the injunction prayed for.

The defense to the action was based upon the ground that Memphis State College is not physically equipped to handle a freshman class in excess of 1,000 students, that if all persons qualified for such admission are admitted without restriction an overtaxation of the physical facilities now available will result, and that such an overtaxation of facilities will result in the school being deprived of its accredited standing and membership in the Southern Association of Colleges. Defendants also aver that Memphis State College is financed by appropriations made by the General Assembly of the State of Tennessee and has no other source of income except tuitions and other fees. They point out that the General Assembly, for the period of July 1, 1955, until July 1, 1957, has made appropriations which are completely inadequate if all the available students in Shelby County alone undertake to enroll in the college. Citing the decision of the Supreme Court, Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083, that courts of equity in providing for desegregation in a systematic and effective manner may consider problems related to administration arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a non-racial basis, the Board in a formal resolution has adopted the following program of transition to desegregation:

"For the scholastic year 1955-56, qualified negro students shall be admitted to do graduate work at Memphis State College, Middle Tennessee State College, East Tennessee State College and Austin Peay State College. During the said scholastic year, qualified white students shall be admitted to graduate classes of the Tennessee Agricultural and Industrial State University for Negroes at Nashville.

"For the scholastic year 1956-57, qualified negro students shall be admitted to the graduate classes and senior classes of Memphis State College, Middle Tennessee State College, East Tennessee State College, Austin Peay State College and Tennessee Polytechnic Institute at Cookeville. During the said scholastic year, qualified white students shall be admitted to graduate classes and senior classes of the Tennessee Agricultural and Industrial State University for Negroes at Nashville.

"For the scholastic year 1957-58, qualified negro students shall be admitted to the graduate, senior and junior classes of Memphis State College, Middle Tennessee State College, East Tennessee State College, Austin Peay State College and Tennessee Polytechnic Institute at Cookeville. During the said scholastic year, qualified white students shall be admitted to graduate, senior and junior classes of Tennessee Agricultural and Industrial State University for Negroes at Nashville.

"For the scholastic year 1958-59, qualified negro students shall be admitted to the graduate, senior, junior and sophomore classes of Memphis State College, Middle Tennessee State College, East Tennessee State College, Austin Peay State College and Tennessee Polytechnic Institute at Cookeville. During the said scholastic year, qualified white students shall be admitted to graduate, senior, junior and sophomore classes of the Tennessee Agricultural and Industrial State University for Negroes at Nashville.

"For the scholastic year 1959-60, and thereafter, qualified negro students shall be admitted to the graduate, senior, junior, sophomore and freshmen classes of Memphis State College, Middle Tennessee State College, East Tennessee State College, Austin Peay State College and Tennessee Polytechnic Institute at Cookeville. During the said scholastic year, and thereafter, qualified white students shall be admitted to graduate, senior, junior, sophomore and freshmen classes of Tennessee Agricultural and Industrial State University for Negroes at Nashville."

Conceding that the Board was moved by proper motives in framing the proposed plan, a majority of the court thinks that in two respects the plan does not comply with the requirements of Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083. Although the record shows that the physical facilities of Memphis State College would be inadequate if...