Sipuel v. Bd. of Regents of Univ. of Okla.

• Decision Date: 29 April 1947
• Docket Number: Case Number: 32756
• Citation: 180 P.2d 135,1947 OK 142,199 Okla. 36
• Parties: SIPUEL v. BOARD OF REGENTS OF UNIV. OF OKLAHOMA
• Court: Oklahoma Supreme Court

1947 OK 142

180 P.2d 135

199 Okla. 36

SIPUEL v. BOARD OF REGENTS OF UNIV. OF OKLAHOMA

Case Number: 32756

Supreme Court of Oklahoma

Decided: April 29, 1947

Syllabus

¶0 1. SCHOOLS AND SCHOOL DISTRICTS - State's established policy to segregate white and negro races for purpose of education.

It is the state's policy, established by Constitution and statutes, to segregate white and negro races for purpose of education in common and high schools and also institutions of higher education. (State ex rel. Bluford v. Canada, 348 Mo. 298, 153 S.W.2d 12.)

2. SAME - Court's duty to maintain state's policy of segregation in absence of conflict with Federal Constitution.

It is the State Supreme Court's duty to maintain state's policy of segregating white and negro races for purpose of education so long as it does not come in conflict with Federal Constitution. (State ex rel. Bluford v. Canada, 153 S.W.2d 12.)

3. COURTS - Duty of State Supreme Court to follow U.S. Supreme Court's interpretation of Federal Constitution.

It is the State Supreme Court's duty to follow United States Supreme Court's interpretation of Federal Constitution. (State ex rel. Bluford v. Canada, 153 S.W.2d 12.)

4. COLLEGES AND UNIVERSITIES - Duty of state boards to provide negroes with facilities of instruction equal to those afforded at University of Oklahoma upon demand or substantial notice of student requirements.

Upon demand or substantial notice it is the duty of the Board of Regents of Higher Education and the board of control for Langston University to provide negroes with equal facilities of instruction as those enjoyed by students of the University of Oklahoma, under statute, but the proper board is entitled to reasonable advance notice of the intention of negro students to require such facilities. (State v. Witham, 179 Tenn. 250, 165 S.W.2d 378.)

5. SAME - Negro student desiring education in Oklahoma instead of in outside institutions with tuition aid from Oklahoma according to established plan should make such preference definitely known to proper authorities before discrimination in educational facilities may be urged.

A negro student, citizen and resident of Oklahoma, has the same right as a white student to be educated in Oklahoma in preference to education in out-of-state schools with tuition aid from Oklahoma, if desired, but when the latter plan has been in operation for a number of years, a negro student preferring such education in the state should be required to make such preference definitely known to the proper authorities before such student may successfully claim adverse and unlawful discrimination in the lack of furnishing such educational facilities in Oklahoma.

6. SAME - Force of long-followed practice of furnishing tuition aid to negro students for higher education in schools outside of Oklahoma.

The practice in Oklahoma of furnishing tuition aid to negro students for higher education in schools outside of Oklahoma does not amount to a full discharge of the state's duty to its negro students, but when such practice is followed for a long number of years and applied to many negro students, with apparent satisfaction to taxpayers and students of both races, it may demonstrate lack of intention to discriminate against negro students and may be accepted as the satisfactory policy of the state and as being free from discrimination until demand for such education within the state is made.

Appeal from District Court, Cleveland County; Ben T. Williams, Judge.

Action in mandamus by Ada Lois Sipuel against Board of Regents of University of Oklahoma, and president, registrar and two named deans of the University, to compel negro petitioner's admittance and enrollment in law school of the University of Oklahoma. From a judgment for defendants, the petitioner appeals. Affirmed.

Amos T. Hall, of Tulsa, and Thurgood Marshall and Robert L. Carter (Franklin H. Williams, of counsel), all of New York, N. Y., for plaintiff in error.

Mac Q. Williamson, Atty. Gen., and Fred Hansen, First Asst. Atty. Gen., and Maurice H. Merrill and John B. Cheadle, both of Norman, for defendants in error.

WELCH, J.

¶1 Petitioner, Ada Lois Sipuel, a negro, sought admission to the law school of the State University at Norman. Though she presented sufficient scholastic attainment and was of good character, the authorities of the University denied her enrollment. They could not have done otherwise, for separate education has always been the policy of this state by vote of citizens of all races. See Constitution, art. 13 sec. 3, and numerous statutory provisions as to schools.

¶2 Since statehood, and for that matter in the two Territories prior to statehood separate schools have been systematically maintained and regularly attended by and for the races respectively. This policy has been established and perpetuated, and these schools have been so instituted and maintained by voters and taxpayers and educators and patrons of both races, as if for the greater good of both races in Oklahoma. So that, without regard to distances, conveniences or desires, or any other consideration, a negro child or pupil may not enter a white school nor a white child or pupil enter a negro school.

¶3 It is a crime for the authorities of any white school to admit a negro pupil, likewise a crime for the authorities of any negro school to admit a white pupil. 70 O. S. 1941, § 455. And it is a crime for any teacher in either such school to give instruction therein to pupils of the other race. 70 O. S. 1941, § 456. The law school of the University is maintained for white students and therefore the authorities and instructors thereof could not have enrolled and taught petitioner therein lest they suffer the criminal penalty therefor.

¶4 Petitioner's failure to obtain this enrollment was followed by this action in mandamus, seeking to compel the school authorities to admit and instruct petitioner, notwithstanding the force of the above laws. Serious questions arise as to the propriety of the remedy sought, but we prefer to discuss the merits of the rights claimed by petitioner.

¶5 There is no controversy as to the facts presented. Trial was had upon stipulation, not necessary to be copied herein at length, as parts relied upon will be discussed in order.

¶6 Petitioner contends that since no law school is maintained for negroes, she is entitled to enter the law school of the University, or if she is denied that, she will be discriminated against on account of race contrary to the 14th Amendment to the United States Constitution. This is specious reasoning, for of course, if any person, white or negro, is unlawfully discriminated against on account of race, the Federal Constitution is thereby violated. But in this claim for University admission petitioner takes no account, or does not take fair account of the separate school policy of the state as above set out.

¶7 That it is the state's duty to furnish equal facilities to the races goes without saying. The record would indicate the state has fully done so as to the lower grades, the high school, and as to general university training. It is a matter of common knowledge that for the past 50 years, ten years in the Territory and 40 years since statehood, Langston University (as it is now named), hereafter referred to as "Langston," has been and is now maintained for separate higher education of negroes, with large sums appropriated therefor and thereto by the State Legislature at each session and large sums allocated thereto by the State Regents for Higher Education. Oklahoma Constitution, art. XIII-A.

¶8 It is demonstrated by allegations of petitioner, and admission of answer and stipulation, that petitioner has in no manner been discriminated against as to lower grades, high school and pre-law college instruction, for petitioner specifically claims that she has fully completed all scholastic work required for pre-law and is therein as well qualified as any white student to study law. That is not controverted, but is admitted, and it is clear that petitioner attained such status in the separate schools of Oklahoma, including Langston.

¶9 Here we must notice the important point that it is not wholly clear whether petitioner seeks to overturn the complete separate school policy of the state, or seeks to compel equal facilities for the races by obtaining an extension of such facilities to include a separate law school for negroes. That point is made uncertain by the pleadings and brief of petitioner and by the stipulation. There is much to indicate petitioner does not assail and seek to destroy the entire separate school policy, and there is some statement to that effect by her or for her in the oral argument. But there is contradiction thereof in petitioner's brief.

¶10 There is an assumption or a charge in respondent's brief that petitioner does not desire the institution of a separate law school, does not desire to attend such a school, and would not attend same if it should be duly and adequately instituted. That assertion is not effectively or satisfactorily denied by petitioner since no reply brief was filed, the usual time for reply brief was allowed, and her position on the point is not made wholly clear in oral argument.

¶11 The authority of a state to maintain separate schools seems to be universally recognized by legal authorities. Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 344, 83 L.Ed. 208, 59 S. Ct. 323; Plessy v. Ferguson, 163 U.S. 537, 544, 41 L.Ed. 256, 258, 16 S.Ct. 1138; McCabe v. Atchison, T. & S. F. Ry. Co., 235 U.S. 151, 160, 59 L.Ed. 169, 173, 35 S.Ct. 69; Gong Lum v. Rice, 275 U.S. 78, 85, 86, 72 L.Ed. 172, 176, 177, 48 S. Ct. 91.

¶12 In Bluford v. Canada, D.C., 32 F. Supp. 707, 710-711 (appeal dismissed, 8 Cir., 119 F.2d 779) it was said:

"The state has the constitutional right to furnish equal facilities in separate schools if it so desire. Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256; McCabe v.

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