Holmes v. Danner

• Decision Date: 10 January 1961
• Docket Number: Civ. A. No. 450.
• Citation: 191 F. Supp. 394
• Parties: Hamilton E. HOLMES, a minor, by his father and next friend, Alfred Holmes, and Charlayne A. Hunter, a minor by her mother and next friend, Mrs. Althea Brown Hunter, on behalf of themselves and others similarly situated, Plaintiffs, v. Walter N. DANNER, Registrar of the University of Georgia, Defendant.
• Court: U.S. District Court — Middle District of Georgia

191 F. Supp. 394

Hamilton E. HOLMES, a minor, by his father and next friend, Alfred Holmes, and Charlayne A. Hunter, a minor by her mother and next friend, Mrs. Althea Brown Hunter, on behalf of themselves and others similarly situated, Plaintiffs, v. Walter N. DANNER, Registrar of the University of Georgia, Defendant.

Civ. A. No. 450.

United States District Court M. D. Georgia, Athens Division.

Order and Opinion Granting Permanent Injunction January 6, 1961.

Granting Stay of Court's Order January 9, 1961.

Restraining Order Granted January 10, 1961.

Temporary Injunction January 12 and 13, 1961.

COPYRIGHT MATERIAL OMITTED

D. L. Hollowell, Horace T. Ward, Atlanta, Ga., Constance B. Motley, New York City, for plaintiffs.

Eugene Cook, Atty. Gen., B. D. Murphy, Atlanta, Ga., E. Freeman Leverett, Elberton, Ga., James Therrell, Atlanta, Ga., for defendant.

BOOTLE, District Judge.

Granting Permanent Injunction after Full and Final Trial.

Following a hearing on plaintiffs' motion for a preliminary injunction in the above-styled action, this court filed its memorandum opinion, 191 F.Supp. 385, including findings of fact and conclusions of law, on September 25, 1960 denying said motion for preliminary injunction. That memorandum fully sets forth plaintiffs' contentions and makes specific findings of fact regarding plaintiffs' applications and the action taken with respect to those applications on appeal through administrative channels prior to September 14, 1960. That memorandum and its findings of fact and conclusions of law are incorporated herein and made a part hereof by this reference thereto.

Since the filing of the court's memorandum on September 25, 1960, a full and final trial lasting four and one-half days has been held, the record of that trial has been transcribed and made available to the court, and counsel for both sides have submitted exhaustive briefs, and the court has carefully considered the record of the trial and the evidence adduced thereat, together with the briefs and affidavits submitted by each side. This memorandum opinion is intended to comply with the requirements of Fed.R. Civ.P. 52, 28 U.S.C.A., relative to the court's findings of fact and conclusions of law.

At a pre-trial conference, held on November 18, 1960, prior to the full and final trial of this action, plaintiffs filed an amended complaint correcting "certain typographical errors apparent on the face" of the original complaint, alleging additional facts allegedly evidencing discrimination, and dismissing Paul Kea, assistant director of admissions, University of Georgia, as a party defendant, but making no "substantive change in the original cause of action."

In his answer to the amended complaint defendant denies the material allegations of plaintiffs' complaint and denies generally "the existence of any policy, practice or custom of limiting admission to the University of Georgia to white persons" and that "plaintiffs were excluded because of their race or color." Defendant also contends that plaintiffs have failed to exhaust their administrative remedies and that their action should therefore be dismissed.

While the complaint in this law suit seeks, as its objective, results never heretofore existent in this state, nonetheless, the problem, procedure and routine here, as in all law suits, must be and are the ascertainment of the law, the determination of the facts, and the application of the one to the other. The basic law applicable here is now generally known and, in fact, is not in dispute in this case. Simply stated, it is that any citizen of the State of Georgia applying for admission as a student to any public, tax-supported college or university of the State, if otherwise qualified, cannot be denied admission solely because of his race or color. Lucy v. Adams, D.C.N.D. Ala.1955, 134 F.Supp. 235, affirmed 5 Cir., 228 F.2d 619; Sweatt v. Painter, 1950, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114; Brown v. Board of Education, 1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873; Hunt v. Arnold, D.C.N.D.Ga.1959, 172 F.Supp. 847. Able counsel for defendant make no contention that plaintiffs should not be admitted to the University of Georgia if they are qualified and comply with admission procedures, and if facilities are available. Therefore, the court is presented with the precise issue of whether defendant has denied plaintiffs admission to University of Georgia solely because of their race or color.

Action in re Applications Since September 14, 1960.

Following the order of this court filed September 25, 1960 refusing plaintiffs' prayer for preliminary injunction, the Board of Regents of the University System of Georgia met on October 21, 1960, and adopted the following report of its committee on education:

"The Committee on Education has carefully considered the appeals of Charlayne A. Hunter and Hamilton E. Holmes, applicants for admission to the University of Georgia.

"From its examination of the records relating to these applicants, the Committee is of the opinion that they failed to complete the required procedures, and that consequently the University authorities have been in no position to consider their applications. The appeals from the Director of Admissions were taken before that official had made, or had opportunity to make, any decision, and were apparently premature.

"Accordingly, treating the appeals of Charlayne A. Hunter and Hamilton E. Holmes as properly before the Board of Regents, the Committee on Education recommends that they be denied, but without projudice sic to the rights of the applicants to renew and pursue their applications."

This information was conveyed to plaintiffs by the Board by letter dated October 21, 1960.

Thereafter, defendant, together with Assistant Registrar Paul Kea and Admissions Counselor Morris Phelps, conducted a personal interview of plaintiff Hunter on November 5, 1960 and of plaintiff Holmes on November 18, 1960. On November 29, 1960 defendant wrote plaintiff Hunter as follows:

"You indicated in your interview on November 5, 1960, that you desired to transfer to the University of Georgia as soon as possible. You also stated that you were now attending Wayne State University in Detroit, Michigan.

"I would like to confirm my statement to you that for the Winter and Spring Quarters of 1961 we are accepting students only within the same categories as we did last Winter and Spring. It might be that some applicants who come within these categories cannot be accepted due to limited facilities.

"We will begin after April 1, 1961, considering transfers for the 1961 Fall Quarter. A transcript through the first semester or the first two quarters of 1960-61 is a prerequisite for consideration.

"We will consider you, along with other applicants, for the 1961 Fall Quarter if it is your desire to transfer."

Also on November 29, 1960 defendant addressed the following letter to plaintiff Holmes:

"When you were in our office for your personal interview on November 18, I advised you that we could not consider your application for the Winter or Spring Quarters of 1961 as we are accepting students only within the same categories as we did last Winter and Spring.

"From a review of your records and on the basis of your personal interview, we are of the opinion that you do not qualify as a suitable applicant to the University of Georgia and you are hereby denied admission.

"We regret that we are unable to accomodate sic you in your request."

At the time of the trial neither plaintiff had been accepted for admission, plaintiff Holmes having been "denied admission" and plaintiff Hunter not having been considered for admission "due to limited facilities."

Failure to Exhaust Administrative Remedies.

Defendant contends that the present action should be dismissed because plaintiffs have failed to exhaust their administrative remedies. More specifically, defendant contends that plaintiffs have failed to comply with the provisions of a regulation governing appeals "from denial of admission to any unit of the University System of Georgia" adopted by the Board of Regents on November 8, 1950.¹ Plaintiffs admit their failure to follow the administrative appellate procedure set out in the regulation of the Board of Regents, but contend, inter alia, that the administrative remedy created by that regulation is inadequate.

It would seem appropriate at this point to consider the Georgia law which forms the background against which administrative officials must act in considering an appeal by a Negro applicant from denial of admission to a unit of the University System of Georgia.

The General Appropriations Act of 1956, Ga.Laws 1956, Vol. I, p. 753 et seq., after making an appropriation for the benefit of the State Board of Regents and the University System in Section 8, contains the following provisions:

"Section 8. (a)

* * * * * *

"Provided, further, that (a) the appropriations made in this Section 8 for the benefit of the State Board of Regents and the University System or otherwise, so far as the same relate to schools and colleges, are limited to schools and colleges providing separate education for the white and colored races, and operating in conformity to Article VIII, Section I, Paragraph I of the Constitution of this State, the General Assembly declining to appropriate funds for any school or college operating otherwise. Funds apportioned or made available under this Section 8 for the benefit of any school or college shall be deemed to be separately appropriated for the benefit of such school or college, and shall be separately subject to the limitation imposed by this subsection upon their use, which limitation shall be deemed to be a condition precedent to such appropriation. In any of the events provided by Subsection (d) said appropriation shall be null and void. * * *

"(b) No part of this appropriation nor any funds realized by the State Board of Regents or the University System or

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