The opinion
AUSTIN. TEXAS
PRICE DANIEL
A--o--
July 31, 1948
The Board of Directors
The Texas State University for Negroes
2007 Petroleum Building
Houston 2, Texas
Attention: Fir.John H. Robertson,
Executive Assistant
Opinion No. V-645
Re: ,Whethera white appli-
cant may be admitted to
The Texas State Univer-
sity for~Ne,groes.
Gentlemen:
You'write that Mr. Jack Coffman, a white cit-
izen of Houston, who.representsthat he isa social
science major from Penn College, Oscaloosa Iowa, de-
sires to be admitted to The Texas State University for
Negroes for the purpose of taking courses in sociB1~
science. You request an opinion as to whether he may
legally be admitted.
Section 7 of Article VII and related Arti-
cles of the Texas Constitution provide that separate
schools shall be provided for the white and colored stu-
;;;thsand that impartial provision shall-be made for
.
The.legislativeact creating The~Texas 'State
University for Negroes1 provides that:
"It is the purpose of~thPs Act to ds-
tablish an entire1 separate and equivalent
university +.
o the first class for Negroes
. . ."
f
Section 1, Senate Bill 140, Acts,SOth Leg., Ch. 29, PO
36, carried as Art. 2643b, V.A.C.S.
I .
The Texas State Universityfor Negroes, Page 2 (V-645)
With regard to which persons would be eligible
for enrollment, the Act further provides in Section 12:
"The term lqualifiedapplicant'as used
in this Act shall mean any colored person who
meets the educationalrequirements . . . .
The term 'colored person' (means) . . . a ne-
gro or person of African descent."
The Act is plain and unambiguous. It shows
without question that the Legislature intended to create,
and did create, an entirely separate university for Ne-
Under that Act only Negroes may be admitted tom
!f;Ze&xas State UniverAity for Negroes.
The sole remaining question is~the constitu-
tionality of the provisions of the Texas Constitution
and the legislative Act creating the Negro University in
the 11 ht of the FourteenthAmendment to the Constitu-
tion of the United States, which provides that:
"No state shall make or enforce any
law which shall . . . deny to any person
within its jurisdictionthe equal protec-
tion of the laws."
In February 1948, the Austin Court of Civil
Appeals,held in the case of Sweatt 1. Painter that~the
State could constitutionallyprovide separate facilities
for the educationsof Negroes and white students, @long
as the facilities offered both groups were substantially
equal.2 That opinion followed a long line of cases by
the Supreme Court of the United States to the same ef-
fect.
Thus in P ess v. Fer son 163 U.S. 537, the'
Supreme Court of t&tzd.%%%%id:
"The object of the (14th) Amendment ,,
was undoubtedly to enforce the absolute
equality of the two races before the law,'
but in the nature of things it could not
have been intended to abolish distinctions
based upon color, or to enforce social, as
2
210 S.W.(2d) 442. The case is now pending'ona plica-
tion for writ of error in the Supreme Court of iexas.
The Texas State University for Negroes, Page 3 (v-645)
distinguishedfrom political equality, or
a comminglingof the two races,upon terms
unsatisfactoryto either. ,Lawspermit-
ting, and even requiring, their separa-
tion in places where they are liable to
be brought into contact do not necessari-
ly imply the inferiorityof either race
to the other, and have been generally, if
not universally,recognized as within the
compete'ncyof the state legislaturesin
the exercise of their police power. m
most common instance of this is connected
with the establishmentof senarate schools
for white and colored children, which has
been held to be a valid exercise of the
legislative Dower even bv courts of States
where the political rights of the colored
race have been lonrrestand most earnestly
enforced. . . .*
Similarly in Cummings 1. Board of Education,
175 U.S. 262, that Court stated:
"We may add that while aliadmit
that the benefits and burdens,of public
taxation must be shared by citizens with-
out discriminationagainst any class on
account of their race, the education of
the ueoule in schools maintained bv stat
fiea
snective states, and any interferenceon
the part of Federal authority with the
management of such schools cannot be jus-
tified except in the case of a clear and
unmistakable disregard of rights secured
by the supreme law of the land. . . .e
And the opinion of the U. S. Supreme Court in
Gong Lum 1. w, 275 U.S. 7$, reads;'
"The'question here is whether a Chi-
nese citizen of the United States is de-
nied equal protection of the laws when he
is classed among the colored races and
furnished facilities for e'ducationequal
to that offered to all, whether white,
brown, yellow or black. Were this a new
question, it would call for very full ar-
gument and consideration,but we think
The Texas State University for Negroes, Page 4 (V-645)
that it is the same questionwhich has
been many times decided to be within the
constitutionalpower of the state legis-
lature to settle without interventionof
the federal courts under the'Federa1Con-
stitution. . . .
II
. . . The decision is within the
discretion of the State in regulating its
public schools and does not conflict with
the Fourteenth Amendment. The judgment
of the Supreme Court of Mississippi is af-
firmed."
In the recent case of Missouri (Gaines)v.
#WY (1938) 305 U.S. 337, the Supreme Court of se
nited States again recognizedthe state's right to pro-
vide separate facilities for Negro and white students.
Its decision reiterates:
"The State has sought to fulfill
.that obligationby furnishing equal fa-
cilities in separate schools,a method
the validity of which has been sustained
by our decisions. . . .n
The Gaines case was cAted with approval in 1948
in Sinue& y. The w 6i3 S.Ct. 299.
There are no case . &eke Court to the
contrary.
Under these decisions,it is unquestionablynow
the law that the states may constitutionallyprovide aep-
arate facilities for the educationof Negro and white
students so long as the facilities offered both groups
are substantiallyequal.
The people of Texas in their Constitution,and
the Legislature in its enactments,have adopted the pol-
icy that white and Negro students should be educated
separately. The law operates to prohibit a white per-
son's entrance to the Negro University as well as pro-
hibiting the entrance of a Negro to the white University.
The law is and must be applicable equally to both white
and Negro citieens.
The University of Texas offers a wide variety
of social science courses. The physical facilities and
scholastic opportunitiesoffered to white students at
The Texas State University for Negroes, Page 5 (V-645)
that institution,and other State supported colleges for
white students, are substantiallyequal to those offered
Negro students at The Texas State University for Negroes.
You are therefore advised that Mr. Coffman may not legal-
ly be admitted to The Texas State University for Negroes.
Since the Texas Constitutionand laws
provide that white and Negro students shall
be educated separately and since substan-
tially equal courses oi study and physical
facilities are offered for white students
at The University of Texas and other State
colleges, a white student may not legally
be admitted to The Texas State University
for Negroes. Constitutionof Texas, Arti-
cle VII Section 7; Sweatt 1. Painter, 210
S.W.(2d! 442.
Yours very truly,
.u Attorney General of Texas
ve Assistant