McKissick v. Carmichael

• Citation: 187 F.2d 949
• Decision Date: 27 March 1951
• Docket Number: No. 6201.,6201.
• Parties: McKISSICK et al. v. CARMICHAEL et al.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

187 F.2d 949 (1951)

McKISSICK et al. v. CARMICHAEL et al.

No. 6201.

United States Court of Appeals Fourth Circuit.

Argued March 15, 1951.

Decided March 27, 1951.

As Modified June 15, 1951.

Robert L. Carter and Thurgood Marshall, New York City (Conrad O. Pearson, Durham, N. C., on the brief), for appellants.

Harry McMullan, Atty. Gen. of North Carolina, and L. P. McLendon, Greensboro, N. C. (Ralph Moody, Asst. Atty. Gen., W. F. Brinkley, Atty. Gen.'s Office, Raleigh, N. C., W. B. Umstead, Durham, N. C., and J. C. B. Ehringhaus, Jr., Raleigh, N. C., on the brief), for appellees.

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

SOPER, Circuit Judge.

The applications of four qualified Negro students, citizens of North Carolina, for admission to the School of Law of the University of North Carolina were rejected solely on account of their race and color by the school authorities; and this suit was brought against the President of the University, the Dean of the Law School and others, denouncing their action as a violation of the Equal Protection Clause of the 14th Amendment, and praying an injunction to prohibit them from denying the plaintiffs admission. The defense was made that the State of North Carolina had established the North Carolina College for Negroes at Durham, North Carolina, and in connection therewith a Law School for Negroes, which affords a legal education substantially equivalent to that which the Negro plaintiffs would receive if admitted to the Law School of the University. The District Judge sustained this defense and dismissed the complaint. Our examination of the undisputed facts of the case convinces us that the Negro School is clearly inferior to the white, and that the judgment must therefore be reversed in accordance with the decision in Sweatt v. Painter, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114, which was rendered prior to the trial of the pending case in the District Court.

The University of North Carolina is now holding its 157th session. In 1843 a professor of law was appointed, and in subsequent years the degree of Bachelor of Laws was conferred in a few cases. A School of Law was formally established and the first Dean was appointed in 1899. It now has a faculty of ten members, consisting of a Dean and nine others. Of these, nine are full professors and one is an assistant professor. All received an academic education at recognized colleges or universities and legal training at law schools of high grade. All have had considerable experience in teaching law in North Carolina and elsewhere, one for ten years and the rest between ten and twenty years. The salaries paid the full professors range from $6740 to $8500 per annum; the salary of the assistant professor is $4500.

Members of the faculty serve in an advisory capacity on legislative commissions of the State; one of them is Director of the Institute of Government, which is a part of the University; and from time to time members of the staff of the Institute are invited to discuss problems of government in the classes of the Law School.

The members of the Faculty have shown scholarly capacity in writing legal articles contributed by them to the North Carolina Law Review, which has been issued since 1923, and to the Law Reviews published by other law schools of good standing. The North Carolina Law Review is published by the University of North Carolina Press, under the management of the faculty of the Law School. It serves as a medium of scholarship, working toward the improvement of the law; and it also serves as a factor in the legal training of the abler students who, by reason of their facility of expression and their ability to make the necessary research, are deemed qualified to make contributions to the publication. Those who are chosen for this purpose have the opportunity to cooperate and engage in discussion in the preparation of the articles for publication and thereby receive training and experience of considerable educational value. Colored students of the Colored Law School do not share in this opportunity. They are allowed to contribute and two or three have done so in the past, but none since the last war.

The University Law School, its faculty and its Law Review, enjoy a fine reputation in legal circles in the United States. The school is accredited by the North Carolina Board of Law Examiners, the American Bar Association and the Association of American Law Schools.

The North Carolina College at Durham was founded as a religious training school for Negroes in 1910. It met with financial difficulties and in 1915 was sold and organized as The National Training School, which was supported by private philanthropy for some years. In 1923 it was acquired by the State and became the Durham State Normal College, and was maintained as a training school for Negro high school teachers. In 1925 it was converted into a liberal arts college and given its present name. The law school was added in 1939 after the decision of the Supreme Court of the United States on December 12, 1938 in State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59 S.Ct. 232, 83 L. Ed. 208, under which the University of Missouri was required to accept a Negro law student because the State did not furnish legal education in the University provided by it for students of his race. Only one Negro student appeared in the North Carolina School of Law in 1939 and it was closed; but it was reopened in 1940 and has since been continuously operated.

The faculty of the Law School now consists of five full time professors, including the Dean, and in addition, two visiting professors, one from the University of North Carolina and one from Duke University, each of whom gives three hours weekly to the work. The former teaches the same property courses which he gives at the University of North Carolina, and the latter gives a course in Practice. The full time men have received collegiate degrees from universities and colleges, and also the degree of Bachelor of Laws from recognized law schools. The Dean is the only full professor, while all the other full time men are ranked as assistant professors. The salary range includes two teachers at $4600, two at $5040, and one at $7,000 per annum.

Their experience in teaching law is limited to their present work at the College Law School, in which the Dean has taught since 1941, two of them for three years, one for one year and one is a new man on the faculty.

The members of the faculty have had no opportunity to study legislative problems in connection with the Institute of Government at the University, or as advisers to members of the State Legislature on Legislative Commissions.

No member of the faculty has contributed to the North Carolina Law Review or published any legal writing. No law review is maintained or published by the Law School, and no training in this respect is offered to the students.

The Law School and its faculty have achieved no reputation in legal circles. The school is accredited by the North Carolina Board of Law Examiners and by the American Bar Association, and membership is expected in the Association of American Law Schools to which an application has been made.

These undisputed facts furnish abundant support for the opinion freely expressed by witnesses of outstanding experience and eminence in the law school field that the faculty of the University is superior to that of the College Law School. Most of the witnesses for the defendant as well as the Deans of the two law schools and the President of the North Carolina...