Frasier v. Board of Trustees

• Decision Date: 16 September 1955
• Docket Number: No. 260-D.,260-D.
• Citation: 134 F. Supp. 589
• Court: U.S. District Court — Middle District of North Carolina
• Parties: Leroy Benjamin FRASIER, Jr., et al., v. BOARD OF TRUSTEES OF the UNIVERSITY OF NORTH CAROLINA et al.

134 F. Supp. 589

Leroy Benjamin FRASIER, Jr., et al., v. BOARD OF TRUSTEES OF the UNIVERSITY OF NORTH CAROLINA et al.

No. 260-D.

United States District Court M. D. North Carolina.

Argued September 10, 1955.

Decided September 16, 1955.

C. O. Pearson, William A. Marsh, Jr., J. H. Wheeler, F. B. McKissick, E. H. Gadsden and M. E. Johnson, Durham, N. C., for plaintiffs.

William B. Rodman, Jr., Atty. Gen., N. C., and I. Berverly Lake, Asst. Atty. Gen., N. C., for defendants.

Before SOPER and DOBIE, Circuit Judges, and HAYES, District Judge.

SOPER, Circuit Judge.

This suit seeks a declaratory judgment that certain orders of the Board of Trustees of the Consolidated University of North Carolina, which deny admission to the undergraduate schools of the institution to members of the Negro race, are in violation of the equal protection clause of the 14th Amendment of the Constitution of the United States. The plaintiffs also ask for an injunction restraining the University and its trustees and officers from denying admission to the undergraduate schools to Negroes solely because of their race and color. The plaintiffs pray for relief under Rule 23(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., not only for themselves but also for all other Negro citizens of North Carolina as a class who possess the qualifications for entrance to the University.

The plaintiffs are three Negro youths who are citizens and residents of North Carolina and graduates of the Hillside High School of Durham, which is accredited by the Southern Association of Secondary Schools and Colleges and by the State Department of Public Instruction of the State. The plaintiffs made formal application for admission to the undergraduate school of the University on April 19, 1955, and accompanied their application with a record of their academic achievements, character and personal references, as required by the rules of the University. On April 27, 1955 they received identical letters from the Director of Admissions in which they were told that the Trustees of the University had not changed the policy of admission of Negroes who were eligible to make application for graduate and professional studies not offered at a Negro college in the state, but were not eligible at that time to apply for admission to the undergraduate schools. Thereupon the plaintiffs requested the University to reverse its policy of discrimination against Negroes and the Board of Trustees in reply, on May 23, 1955, reaffirmed its policy by passing the following resolution:

"The State of North Carolina having spent millions of dollars in providing adequate and equal educational facilities in the undergraduate departments of its institutions of higher learning for all races, it is hereby declared to be the policy of the Board of Trustees of the Consolidated University of North Carolina that applications of Negroes to the undergraduate schools of the three branches of the Consolidated University be not accepted."

The University of North Carolina is recognized both in Article IX, section 6 of the Constitution of the State, and in Article 1, Part 1, section 116-1, of the General Statutes of the State. These enactments provide that the General Assembly of the State shall have power to provide for the election of trustees of the University of North Carolina in whom shall be vested all the rights and privileges granted to the University, and the General Assembly is empowered to make laws and regulations for the management of the University. The General Statutes in Article 1, Part 1, section 116-2, provide for the merger and consolidation of the University of North Carolina, the North Carolina State College of Agriculture and Engineering, and the North Carolina College for Women into the Consolidated University of North Carolina. Section 116-10 of the General Statutes empowers the trustees to make such rules and regulations for the management of the University, as they may deem necessary and expedient, not inconsistent with the laws of the state.

The resolution of the Board of Trustees of May 23, 1955, above set out was passed under the authority of these constitutional and statutory provisions. The complaint rests upon the invalidity of this order. There is no constitutional or statutory provision which expressly requires the segregation of the races in the University¹; and the plaintiffs do not challenge the assertion of the defendants that North Carolina has provided adequate and equal educational facilities for all races in the undergraduate departments of its institutions of higher learning.

Having been refused admission to the University, the plaintiffs brought the present suit, and prayed that a three judge District Court be convened under 28 U.S.C.A. §§ 2281 and 2284; and the present court was accordingly established. The defendants contend that the case is not one for a three judge court because there is no constitutional or statutory provision which denies the admission of Negroes to the University or requires the segregation of persons admitted to the University on account of their color.

We hold, however, that jurisdiction exists in the Court, as now set up, because the statute 28 U.S.C.A. § 2281, requires a three judge court not only when it is sought to restrain the enforcement of an unconstitutional statute, but also the enforcement of an unconstitutional order of an administrative board or commission, clothed with authority and acting under the law of the State. The jurisdiction of a three judge court was sustained under circumstances precisely similar to those in the case at bar in Wilson v. Board of Supervisors, D.C.E.D.La., 92 F.Supp. 986, which was affirmed without opinion in 340 U.S. 909, 71 S.Ct. 294, 95 L.Ed. 657, and Id., 340 U.S. 939, 71 S.Ct. 490, 95 L.Ed. 678. The decision was based on the ground that a three judge court is required when an injunction is sought because of the unconstitutionality of the order of a State administrative board. It is beyond dispute that the State of North Carolina, both by constitution and by statute, has clothed the Board of Trustees of the University with authority to make such rules and regulations for the management of the institution as they deem necessary and expedient, and it follows that the regulation now under attack must be considered a "statute" to which the State has given its sanction within the meaning of the jurisdictional provisions of 28 U.S.C. § 2281. See American Federation of Labor v. Watson, 327 U.S. 582, 592, 66 S.Ct. 761, 90 L.Ed. 873; Oklahoma Natural Gas Co. v. Russell, 261 U.S. 290, 43 S.Ct. 353, 67 L.Ed. 659. In McCormick & Co. v. Brown, 4 Cir., 52 F.2d 934, 937, it was said: "* * * it is settled that a court of three judges is required not only when the constitutionality of the state statute is involved, but also when the constitutionality of an...