Petition for Writ of Certiorari — Fair v. Meredith
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© $-oreme Court, U.S,
-F I LED
“SUPREME
AUG 16 1962
,af
Cl URT,
aie ‘ORAZ
JOHN P, DAVIS, CLERK
es. | ree
_- SUPREME COURT OF THE
UNITED ST. ATES |
CHARLES DICKSON FAIR, President of
‘the Board of Trustees of State Institutions ~
- of Higher Learning of the State of Missis-
US OE I asa ste _.Petitioners
2 Pee
* JAMES HOWARD MEREDITH, on behalf .
of hinwelf and all otliers similarly situated Respondent
' PETITION FOR 2 WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
' THE FIFTH CIRCUIT
JOE T. PATTERSON, Attorney General
of the State of Mississippi . .
DUGAS SHANDS, Assistant ‘Attorney
_..._._. General of the State of Mississippi: .
PETER M. STOCKETT, JR., Special .
Assistant Attorney General of the
State of Mississippi .
a New Capitol, Jackson, Mississippi
CHARLES CLARK, Special, Assistant
\ Attorney General of the
State of Mississippi
P. O. Box 1046 ;
Jackson, - Mississippi --
Counsel for Petitioners
COX, DUNN. & CLARK
1741 Deposit Guaranty Bank Building
Jackson, Mississippi
Of Counsel i aes nore tich ‘ :
__———,
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SUBJECT INDEX: ~~
Opinions "Below. ae
| durisdietion
ae Questions Presented
Constitutional Provisions, Statutes, Regulations
and Orders iaveqved 2:
Statenient of the Case ee
A. Jurisdiction — :
B. Pleadings, and Proceedings cspreceepmtneche tees
C. ‘Statemént of Facts - |
Argument aaade. ; On tickets
“have original jurisdiction to hear and de-
termine causes under Title 28, U.S. Code,
Séction-1291
Il. The Honorable Court of Oe for the
Fifth*Circuit erred in ordering the entry
Of class. ‘action ‘relief in this cause
IIT. The Honorable Court of Appeals ereed in
Priest te
2 t8uing and directing the lower court to
_issue a mandatory injunction requiring
‘and denying the Registrar and other of-
£ AU nited States ieiurt-ad Aepenlihooe-san
tw
w w
= |
. . x *. -
Respondent’s admission at mid-session. .
fictals of the University of Mississippi the - -
discretion to act as such officials on Re-
spondent’s application without notice or
peareng Caucasians ES
i, +4,
ae ek See Page
7 & ; F .
1V. The action of the Honorable Court of Ap-
peals resulted in the decision of an impor-
“tant State question in a way to ‘conflict —
- with the applicable Constitution and Lows
_ of the State of Mississippi’ =. 25
V. The actions of the Honorable Court of Ap-
_ peals for'the Fifth Circuit subsequent to
the issuance of its mandate constitutes
- such a departure from the usual and ac-
‘cepted course of judicial proceedings as to
call for the exercise of this Court’s super-_
vision cn dhpeensppninnsigenteigp pal sSiassni ap "27
Capetiaakel TES SEEMS fe LEA NTS:
Certificate Pt Lane ners se oceseprentcomprene reer,
INDEX TO’ APPENDIX:: .
Opinion of District Court on. Motion for Pré- |
liminary Injunction a PRC res | |
Opinion of Court of Aepeals on aiaui from ;
Denial of Motion for Preliminary Injunction. All
Opinion, Findings of Fact, and Conélusions of
Law of District Court on Trial on the Merits. A25
‘Opinion of Court of Appeals on Motion for. In-
junction Pending Appeal hare nine,
” Order of Court of Mf Appeale — Criminal
Proceeding _. theese ais Rilcy cals eapeceetek a
) Majority Opinion of Court of Appeals on Ap- Minar
peal from Trial on the Merits... tis:
Page
Dissenting Opinion of Court of Appeals on.
Appedi from Trial on the Merits _, M85
; Judgment of Court of Appeals Rev ersing eae
Remanding | cause to District ( ‘ourt ‘ A89
Letter of Clerk Issuing Judgment asand for . |
; Mandate 2 ; : ee KIN
Order Staying Execution and Enforeement of |
Mandate—~~— sai ' aa rt ~ 493 J
% “Onder Vacating Stay, DReciiing: Mandel and ge
Issuing New Mandate Forthwith” ...... A%
; :
Judgment Recalling and Amending Mandate. we
he of Clerk Issuing. Judgment, as and for,
"Amended and Substitute Mandate A107
Order Staying. Execution and song mm Ole
Amended } ne rai a vvonsnn A108
“Order of Ci ourt of Lifeals, After Meemanes of —
Mandate, Injeining Parties a and all Persons ,
Having Knowledge of Deereé and other Non
PO i eh
. Order Staying Executi: and Enforcement of © - «
_ Order Rendered after Issuance of Mandate_A115
Rule 52(a) ARERR Pa reload
A117
Bale 44,8) gt
mie 6 os
. ————
Title 28, U. s, Code
G1286(1) ae Lace he
§1291 ecb Ss as
Nee cP ge oe ee A119 |
[pol ane
ie. ee:
Title 42, U.S. Code ; Ss
OSGI AE TEAC
Mississippi Constitution of 1890 3
Art, 8, §213-A -— hss ee
’ Minutes of Board of Trustees of State Institu-
tions of Higher Learning Serr
September 16, 1954. cae
~ * February 7; 1961 ——— __A126
~ Excerpts from ‘‘ Bulletin of The University: =.
Mississippi”’ Se “
: _A127
Page 64 2 per i a
Page 82 _ Are ener haere
Page 116 atateennnnanetone A
ee "a aeamanae Eee ash A129
Page 122 - Ret ee oO ee
Excerpts from ‘‘Minutes of the Meeting of the
Committee on Admissions”. Sei A130,
Letter f Clerk advising Counsel that ‘the
Cou eae the Performance of
“his Datiés ———$_ _—__-_-____— A131.
‘ —
ae. faces a ae
; x F Page s!
Telexram from Clerk Directing Filing and:
Exchange of. Statements and Briefs on _
New Actions Contemplated by Court of
Appeals .- DEAN spate Ras PE oo At CPOE ~ A183
eae Affidavit ‘” Comet, to Clerk’s. Non- eet
: performance of Dutie ee oe are en’
TABLE OF CASES: iss
~ Beauharnais Vv. minis, 343 US. 250, 96 L.Ed. .-.
| 919, 72 S.Ct. 785. Eig SeaiNe Aes eee OO
Brown v. Board of Eduéation, 349 JU. S. 294, 99 ,
L.Ed. 1083, 75 S.Ct. 753. 16, 19
Galloway v..U: 8, 319 U. S. 3 87 L. Ed. 1458, 63, ibe
2 $Ct, 1077 2
.
Hamilten Vv. Board: of Regents’ of the University ”
‘of California, 293 U.S.. 245, 79 L.Ed. 343, 55
S. Ct. OO RN eRe aa OID A IO 4, 23
Laney v. Board, 134 F. Supp. ae PRE et ae 23
-MeCabe v. Atchison, T. & S.F. cole Co., 235 US.
151, 59 L.Ed. 169, 35 S.Ct. 69. pate apne BE
Moore v. Chesapeake & 0. R.R. Co, 340 U.S. 573,
95 L.Ed. 574, 71 S.Ct. 428.2. . 16
Pennsylvania R.R. Co. v. "Chamberlain, 50 F. 3d .
' . 734, cert. den. 288 US. 333, 77 L.Ed. 819, 53 :
8.0093 42 16
Rosenberg v. U. S., 346 US. 273, 97 L.Ba. 1607, :
- 73 §. Ct. IO Sicilian ARE Simon eA ie ea oe 32
3 Steier v. ‘Mew York Commission, 271 F. 2d “ie |
_
{3
2
485, 94 L.Ed. 1007, 70 S.Ct. 711.
«
«
U. S. v. National Real Estate Boards, 339 US.
Page
_ 16
; Waugh v. The Board of Trustees of the Univer- :
sity of Mississippi, 237 U. S. 589, 59 L.Ed. 1131,
Weeks v. Bareeo Oil (o., 125 F: 24 #.
OTHER AUTHORITIES: 4
_ Mississippi Constitution (1890), §213-A_.____5,
_ Moore’ s Federal Practice & Procedure
“, Vol. III, §23.04 LS <
‘ <) Vol. Ii, §23. ee ee ee
United States Code ae |
itis 8, 41961) >. 495
Rot pean enwenaenn, YE
1343(3) op EHNA AD eee
ate . |) () ore SRN oes Ae TLS 3,5
atte Posh
@ . 2101 (f) ___+___._. 3, 5, 7, 27, 29, 30, 32, 33
| | ESSERE 7 Ms Sake noe 5, 6
-. EAR RAY aera Cats 4, 5, 26, 27
Title 28, Federal Rules of Civil Procedure, |
. Rule aya... cacneenepenneneee 1.22, 23
ie ee 5, 17
Rule 65(a-d) oer rttennad SOT NS AS 5, 25 ©
Title 42, PO Sinden ue etaoes manila aA, | 6
"Bales of U.S: Court of vital for the Fifth ;
‘ Cirenit =
_ Rule 32. 27
| CAIN MO og
SUPREME COURT OF THE .
‘UNITED _—
No.
CHARLES DICKSON FAIR, President O22, 7 ’
the Board-of Trustees of State Institutions * *
of Higher Learning, of the State of Missis- "
-. sippi, et al. ie C 1” Petitioners
ae 4A :
JAMES HOWARD MEREDITH, onbehalf - = 5°
_ of himself and all others similarly _— eet:
* PETITION FOR WRIT OF CERTIORARI TO THE
‘UNITED STATES COURT OF APPEALS FOR
"THE FIFTH CIRCUIT lr
_ Charles Dickson - Fair, President of the’ Board of
Trustees of. State Institutions of ‘Higher Learning of '
the State of Mississippi, Euclid Ray. Jobe, Executive,
Secretary of the Board of Trus‘ces of State Institutions
of Higher Learning of’ the State of Mississippi, Edgar
Ray Izard, Leon Lowrey, Ira Lamar Morgan, Malcolm
Mette Roberts, William Orlandg’ Stone, S. R. Evans,
Verner Smith Holmes, James Napoleon Lipscomb, Tally
D. Riddell, Harry Gordon Carpenter, Robert Bruce
Smith, II, and Thomas Jefferson Tubb, Members of the
Board of Trustees of State Institutions of Higher Learr-
ing, James Davis Williams, Chancellor of the University
of Missjssippi, Arthur Beverly Lewis, Dean of the Col-
‘lege of Liberal Arts of the University of Mississippi,
‘and Robert Byron Ellis, Registrar of the- University of
Rees eee Meredith v. Fair, Bt i.
| Mississippi, hereinafter referred to as PETITION ERS,
pray that a Writ of Certiorari issue to review (1): the
injunction order: of the United States Court of Appeals
for the. Fifth Circuit entered in the above case on the
12th day of June, 1962 (ASH; (2) the judgment of
said court in the above case dated June 25, 1962, issued
as and for the mandate of: said court on the 17th -day- of
as and for the mandate of were ‘court, as amended on
July 28, 1962 (A. 105); (4) the order of said court vacat-
ing stay, recalling ‘mandate .and issuing new mandate
forthwith, which is undated but which was certified by
the clerk of ‘said court on the 27th day of July, 1962
(A. 95); the order of said court dated the 28th day -of
July, 1962 (A. 111) (Copies of said orders being append-
ed to this opinion at the appendix pages indicated) ; and
the action of said court in forbidding the-clerk. of said
court to furnish certified copies of documents and records
; *- in his office connected with this case. -
OPIN IONS BELOW
: $
District of Mississippi, Jackson Division, on motion for
preliminary’ injunction (R. 210) (A. 1), is reported at
July, 1962 (A. 89); (3) the judgement of said court in’
"the above case dated duly 27, 1962, issued July 27, 1962
-&
The opinion. of the. District Court for»the Southern t
199 F. Supp. 754; the opinion of the Court of Appeals —
for the Fifth Circuit on the appeal of the denial of motion
for preliminary injunction (R. 228) (A.-11) is reported
at 298 F. 2d 696; the opinion of ‘the District Court for
the Southern District of Mississippi, Jackson Division,
after’ trial on the merits (R. 722) (A. 25) is reported at
202 F: Supp. 214; the opinion of said Court of Appeals
on motion— for injunction pending - ‘appeal (R. 734)
(A. 35) i is not yet ganas: the — of said setae of
Meredith.v. Fair, Et Al. 3
“
Appeals on the appeal from the trial on the merits (R.
869) (A, 45) is not yet reported; the instrument of said
. Court‘of Appeals, styled, “ORDER VACATING STAY, -
~ RECALLING MANDATE AND ISSUING NEW MAN-
DATE FORTHWITH”’ (A. 95) is not yet reported.
- (Copies of all said opinions are appended to this petition |
at tlie appendix pages indicated.)
JURISDICTION
«Jurisdiction to review these orders-and action of said
'. Court of Appeals: by Writ of Certiorari is conferred
upon this Honorable Supreme Court under Title 28,
nif S. Code, Sections 1254(1) and 2101(¢c) and sida
QU ESTIONS P RESENTED
_ The questions presented | by this petition are:
o me
Does a United States Court of Appeals have. original. .
. jurisdiction to hear and determine causes under Title 28,
' U.S. Code, Section 1291?
Did the Honorable Court of Appeals forthe Fifth
. Cireuit err in ordering thegentry ‘of class action relief
on the basis of a record ‘devoid of any. proof of the
propriety of such relief? Nk.
3.
Did rt said sical Court of Appeals. err. in
“mandatorily ordering Appellant-Respondent James H.
Meredith, (hereinafter referred to .as RESPONDENT) .
admitted to the University, of Mississippi at mid-session
- or at Respondent’s option, contrary to the rules and
°
4 "Meredith v. Fair, Et Al.
_ regulations of said-institution, thereby denying all dis-
cretion to the Registrar and other officials of ‘such °
University to consider facts affecting Respondent’s. ad-
missionnot disclosed in the record of this cause ‘and.not
existent at the time the record was made in the trial
_ court? . ;
3a. rs
Is the manditory injunction of the Honorable Court
of Appeals for the Fifth Circuit in conflict with the
decision of this court in the cases of: Waugh v. The |
Board of Trustees of the University of Mississippi, 237
U. S. 589, 59-L. Ed. 1131, 35 S. Ct. 720; and je ".
Board of Regents of the University of Calif.; 293 U.
245, 79 L. Ed. 343, 55S. Ct. 1977.
eee e-
Did the action of the Honorable Court of Appeals for
the Fifth Circuit in determining (without composing-a
three-judge court under Title 28, U. S. €ode, Section
2281). that a regulation of the Board of Trustees of .In- : 7
; stitutions of. Higher Learning of the State of Mississippi |
requiring applicants to colleges under. its supervision to
submit recommendations from alumni as to their good
moral character and ability to pursue college level. work,
result in the decision of an important state question in ~
a way to conflict with the applicable Constitution and
Laws of the State’ of Mississippi?
5. PS
Did the actions.of the Honorable Court of Appeals for .
the Fifth Circuit, subsequent to the issuance of its man-
date, in: (a) directing the clerk of said court not to
perform ‘ordinary ministerial functions of his office;
| Meredith v. Fair, Et Al. - aes
(b) acting upon its own moti6n to initiate new proceed-
ings in the court to reassume jurisdiction ; (ec) recalling
its mandate; (d) vaeating a statutory stay granted under |
Title 28, U.S. Code, Section 2101(f) on the grounds that
no action thereunder could be taken by a judge who was
not a member of the panel w ho heard the ease; (e) render-
ing ‘ new judgment or decision purporting to circumvent
the stay so granted; (f) forthwith and immediately issu-
ing its mandate on July 27, 1962, contrary to-the provis-"
ions of its own Rule 32 which provides that the mandate .
shall not issue until 21 days after the date of its decision |
_ in any cause; and (g) making an order, after.it has issued
its mandate reversing and remanding the cause to the
. District ‘Court, enjoining a criminal proceeding under
‘the valid laws of a sovereign state without notice of the
parties enjoined-or any hearing or opportunity for hear-
ing, which injunction is directed ta a person not pven a.
party to the-present action; constitate such a departure |
from the usual and accepted course of judicial proceed-
_ “ings as to call for an exer cise of ‘this Court’s power of
superv ision? :
CONSTITUTIONAL PROVISIONS, STATUTES,
REGULATIONS AND, ORDERS INVOLVED
’ The tatibes involved in the consideration of this peti-
tion are: Title 28, U.S.-Code, Federal Rules of Civil
Pore Rules 52(a) and 65(a-d) (A. 117); Sections
1294(1),. mad 2101(c) & (f), 2201 and 2281 (A. 119); -
7 -Title 42, U ’. §. Code, Section 1983 (A. 121); Mississippi
Constitution (1896)-§ 213A (A. 121); and. ‘the’ orders
* and regulations. of the Board of Trustees_of Institutions
of Higher Learning of. the State of Mississippi and the~_
University of. Tee (A. sid
6 Meredith v. Fair, Et Al.
(The pertinent, portions of the aforesaid are set forth
© in the appendix to this petition at the appendix ean
— ee
STATEMENT OF THE CASE
ae
@ . — Jurisdiction :
Jurisdiction in the court of first instance was invoked
under Title 28, U. S. Code, Sections 1343 (3) and 2201,
and. Title 42; U. S. Cote, Section 1983. ;
Pleadings and Proceedings °
The Respondent filed a Complaint in the U. 8. District
Court for the Southern District of Mississippi on the
_ 83lst day of May, 1961, seeking a prohibitory injunction. ps
He also prayed for a declaratory-judgment (R. 16). A
motion: for a temporary restraining order without notice
was denied (R. 19) and the matter came on for hearing.
- on motion for preliminary injunction (T.R. on Prel. Inj.,
Plaintiff’ ’s Exhibit 16, Vol. 1, Page 1). Respondent ap-
pealed from a denial of: this motion and the Court of:
Appeals affirmed and remanded the case for trial on |
the. merits. es
After trial on- the merits, the District Court denieg the
-reliefsought by Respondent and he again appealed to,
the Court of Appeals for the Fifth Circuit. The Court
- of Appeals denied a motion of Respondent for injunction
' pending appeal. The appellate court reversed the case -
and remanded the same to the District Court with in-
structions to grant the relief prayed for in the Complaint
| >
Meredith v. Fair, Et Al. bees
(R. 869.) Prior to any action thereon by the District
Judge, a. Judge of the Court of Appeals for the Fifth
Cireuit stayed the ‘execution and enforcement of that
court’s mandate for a reasonable time to enable Peti-
tioners to file a petition for a Writ of Certiorari with
this Supreme Court, under the provisions of Title 28, -
U-S. Code, Section 2101(f), (R. 925) (A. 93).
- After ¢ lirecting its clerk to withhold any certification
of the récord of. proceedings in this cause requested by
Petitioners (A. 134), the Court of Appeals then initiated
‘a new proceeding in that court, rendered an opinion that
the statutory stay wag improper and directed the parties
to file statements and briefs with it with regard to actions.
that the Court of Appeals evidently contemplated taking
in-the cause then pending before, the District Court (R:
925(a). (A. 133). In response to this direction, Respond-
_ ent filed certain motions with the e said Court of Appeals
requesting the contemplated act actions (R. 926). The Court
of Appeals then issued a series of orders recalling its
mandate, setting aside the stay granted ‘pursuant to
Section 2101(f), issuing its’ mandate forthwith to the
lower court directing the issuance of an injunction there |
and issuing a mandatory jnjunction directing the im- ©
mediate admission of Respondént during the middle of
the second summer ‘session of the 1962 academic year —
_ of the University of Mississippi, or the admission of said.
Respondent ‘‘in September,”’ according to Respondent’s
‘ personal wish (R. 962). The samt judge who stayed fhe
execution and enforcement of the previous mandate and
judgment stayed the execution and enfgrcement of the
~ subsequent: orders, judgmnent and new mandate under
the same ‘statute [28 U. 8. Code, § 2101(f)], (R. 7
(A. 115).
SE
S eae Meredith v. Fair, Et Al.
__ Statement of Facts -
Respondent graduated from High School in the State
of Florida in the year 1951 (T.R. on Prel. Inj., Plaintiff's
Exhibit 16, ‘Vol. 1, Page 57); he was then 17 years of age
(T.R. on Prel. Inj., Plaintiff’s Exhibit 16, Vol. i Page
58). He served in the U. S. Air Force by his own vohun--
tary choice for a poriod of 9 years, until his discharge
- therefrom on the 21st day of July, 1960: ( Deposition of
James H. Meredith, Defendant’s Exhibit 28, Page 28).
He then entered Jackson State College in Jackson, Mis-
sissippi, in the month of September, 1960 (T.R. on Pret.
Inj., Plaintiff’s Exhibit 16, Vol. 1, Page 75).-Om the 31st
_ day of January, 1961,-he made application to transfer
--to the 2nd or final semester of the 1960-61 academic year
_of the University of Mississippi (T.R. on Prel. Inj., Plain-
tiff’s Exhibit 16, Page 16). Upon being advised his‘ ap-
plication could not be considered for that semester, he
| requested that it be considered for the summer session
of the 1961-62 aeade Year, which began.in June of
1961 (T.R. on Prel. Ip#. Plaintiff's Exhibit 16; Page 22). .
This application wAs denied on May 23, 1961 (T.R. on
Prel. Inj., Plantiff’s Exhibit 16, -Vol. 1, Page 55). Suit
was filed six days later (R. 17). J
Respondent is a senior at Jackson State ( ‘ollege. He
has dropped er a conscious effort not to graduate .
‘(R..930). If he transfers té the University of Mississippi
he will loose all credit for his Air Force G.E.D. tests
which Jackson College has accepted and will, under the
regulations of the University, have to spend a minimum
_. Of one academic yar asa student at the University to
receive a-diploma (R. 486) ( A. 128).-The Registrar of the
eo”
Meredith.v. Fair, Et AL
U niv ersity is thoroughly familiar with. ne prov isions of
Public Law 550 which is the source of all support. Re-
spondent has for his family and himself and which must .
make up the defic it operations on his farms. The Regis-
trar believes that the set back in educational progress
which Respendent’s requested transfer ‘will bring will ~
result in the loss of benefits to Respondent ‘under this
law (R. 461).
During t the course of the procedilings in the t ial court,”
Respondent was questioned about his a of gov-
- ernment paper, on which certain parts of his application
were made.. Under oath he gave three conflietjig versions
of where this paper had been obtained—(1) it was his
personal paper. and-he bought it ( Deposition of James H.
Meredith, Defendants’ Exhibit 28, Page 78), (2) it be-
longed to the gov ernment and he had taken it because he
knew of. no serious objections to ‘clerks taking a few
sheets of paper to type a a letter or something,” ( Deposi-
tion of James H: Meredith, Defendants’ Exhibit 28, Page
79), (3) it had been disearded by the government and he
had picked it up in the trash (T.R. on Prel. Inj., Plain-
. tiff’s Exhibit 16, Vol. 1, Page 129, 130, 131). It was also
developed that Respondent had consulted an Air Force -
Psychiatrist because of the nervous condition described
as compulsive obsessiyé neurosis (ev idenced by a needé
-to fight and defy authority). He ‘omitted any reference ;
to this neurosis in the physical information given to the
U niversity, although he stated to the Air Force thiat he.
had such a nervous and mental condition after the date
of ‘his psychiatrie consultation in connection with his
‘separation therefrom (T.R. on Prel. Inj., Plaintiff's Ex-
hibit 16, Vol. 1, Pages 200-201). Again’ under oath, he
_ testified that-he had intentionally omi‘ted refererice to
10. “Meredith v. Fair, Et Al.
Ya“
the disorder from the University’s application informa-
tion for the reason that he had been advised by the psy-
chiatrist that he did not have such a condition though
his Air Force records clearly showed such disorder (T:K,
_on Pret: Inj., Plaintiff's Exhibit 16, Vol. 1, Page 201).
Two days subsequent to his application to the Univer-
sity, in.which he identified himself as a resident of Attala
County, Mississippi, he completed written oaths before
the Registrar of Voters in Hinds County, Mississippi
that he was a resident of Hinds County (T.R. on Pra.
» Inj, Plaintiff's Exhibit 16, Vol. 2, Page @®). His sworn
testimony throughout this record was that he was a”
* resident of ‘Attala Counts, Mississippi; only his oaths
before the Registrar of Voters are to the contrary.. Evi-
dence was also presented to the District Court that -
‘Respondent had been a member of a student organization
at Jackson State College which had published hand bills
> ;
agitating for defiance by students against the faculty of
that school (T.R. on Prel. Inj, Plaintiff's Exhibit 16,
Vol. 1, Pages 146-147; Vol. 2, Pages 327, 330). He denied
that he agreed with the content of this particular hand
bill. He first testified that he had not assisted in pre-
paring other writings of the same organization, but
changed his testimony on cross-examination (T.R.. on
Prél. Inj., Plaintiff ’s Exhibit 16, Vol. 1, Page 194).
In the course of preparing for the trial on the merits,
Petitioners’ counsel interviewed the five Attala County
citizens who Respondent purportedly had voluntarily
~” eontacted to write letters certifying his good-moral char-'
acter and recommending his ability to do college “level
work at the University (R. 662, 663). Four out of these
five citizens signed affidavits which were made a part
of the University Registrar’s files, which stated.that -
Meredith v. Fair, Bt Al. oe
they had not—personally known the applicant’ for’ the
required length of time and were not in a position to
make any certifications as to his moral character or any
\
recommendations for his admission to any éollege (R.
663, 665, 666, 668). Three of these citizens also stated
under oath that the letters as signed by them contained
no referetice to the University. Two of them were led
to believe the letters were/to help Respondent get a job
(it. 664, 666). © :
The. Registrar testified that he had denied Respond-
ent’s application without, regard to his race or color be-
- cause it did not meet the applicable regulations of the
Board of Trustees of Anstitutions of Higher Learning
and the University, heath as it did not contain any
certificates or recommendations meeting the require-
ments for,resident or non-resident students [which latter
certificates and recommendations are not required to be
from alumni but are only required to be from responsible
citizens of the applicant’s community wlio have: known-
him for at least two years (A, 124)), and beeause Re-
spondent sought to transfer from an institution which
‘was not, at the time of the making of.the application or
at the ‘time of the ruling on the application, an approved
institution. within the requirements of the University’s
bulletin regulations { A. 127), and because the‘appli¢ation .
indicated to the Registrar that a transfer would result,
in the applicant’s loss of his GI edueational benefits
under Public Law 550, on account of the large number of
credits which were acceptable as work at. Jackson State
~ Cottege toward a degree which would -not be acceptable
sind would be lost to the applicant‘on a transfer to the
University (T.R. on Prel. Inj:, Plaintiff’s Exhibif 16,
Vol, 2, Pages,363-367, 371-372, 453-455). The Registrar
12° Meredith v. Fair, Et Al.
testified that at Respondent’ s age this necessary set back
in his educational progress evidenced an unfeal attitude —
toward pursuit of a Sapte degree (T.R. on Prel: Inj.,
Plaintiff’< Exhibit 16, Vol. 2, Page 373). The Registrar
‘ testified that since the rejection of the application on .
May 25, 1961, he had reviewed the testimony of the
Respondent and the evidence produced on the trial of -
. if and that he was of the opinion that the appli-
‘/eant was not applyi ing to the University to further his
/ edueation “but was instead trying to make trouble to
satisfy his neurosis. The Registrar further stated that.
even if this applieation were considered to be a continu-
ing application, contrary to the long established rules of
the Unitersity, ‘the application would have to be again
denied (R. 670). This testimony was given on- ‘Ahe 26th
day of January, 1962.and the proof in the trial court was
concluded on that date (R. 721). AD leet adil
. At the conclusion ofthe trial on the merits in the lower
- eourt, the District Judge refused to consider or rule on
any facts, conflicting or unconflicting, which ‘came to
the knowledge of the Registrar of the University of -
Mississippi subsequent to his May 25, 1961, denial of
Respondent’ s application, and held that the application
was denied on M@y 25, ‘1961 .on. non-diseriminatory
grounds. The Complaint was, therefore, dismissed. On
appeal, the C ‘ourt of Appeals retersed thts finding and
proceeded ‘to make original determinations of fact mat-
‘ters which the lower court had not reviewed and on which .
said trial court had expressly declined to make findings.
Meredith v. Fair, Et AL” 13
ARGUMENT |
. . hen hes I. .
A United States Court of Appeals does not have orig-
inal jurisdiction to hear and determine Causes under
Title 28, U. S. Code, Be ction 1291 | ;
At the outset, we respectfully direct the court’ 8 aften-
tion to the opinion of the Court of Appeals reversing and
remanding the cause after the trial on the merits, and
to the following comparison of ‘the adjectives, adverbs
_ and phrases used in the majority opinion to describe the
litigants and their ations.
‘ As to the. Petitioners, the opinion was conitied | in these
words and phrases:
‘*a earefully calculated campaign of delay, harassment,
and masterly, inactiv ity’
‘evasive tacties which would -have been a credit to
Quintus Fabius Maximum’’?-- - °
**Fabian © Policy. of planned discouragement and die;
crimination by delay”
“elequent silence’’
“The axe fell’’ ;
‘‘a patently discriminatory devive.”” x
“ suecessfully avoided decisive action” |
‘That shot the first semester.’’
- “delaying action’? res
**discouragingly high obstacles”
“obvious dodges”
4 | ‘Meredith v. Fair, Et Al.
e” ~~
“evade” *
“completely unjustifiable”
: ‘unconstitutional discrimination”
“inconsistent?” 6 Sd nee ore
.“‘diseriminatorily ‘applied ae
“conscious pattern of unlawful discrimination”’
‘irrationally construed” : |
.“*trumped-up excuse’’ :
‘determined policy of discrimination by harassment’”
- “*seraping the bottom of the barrel’
“frivolous charge’’. |
‘*trivia’’ eae y [6
“unreasonable”? ;
‘*‘insubstantial reasons”
“the veil of innocuity’’
“fail the test”
i ‘fnone so blind as those that, will not see’? |
.
AND IN CONTRADISTINCTION, these adjectives, .
adverbs and phrases were er to Reaphadent:
| “perseverance” ; ; eo : ..
“a man who-i is eme a hard we dias a college
' education’.
‘
ad . . e -
“not a ditare of defiance’’.
‘no chip on the shoulder”’
Meredith v. Fair, Et AL.
as. ‘*nolite’’ .
me 5 abnormal concern’?
‘not #rreasonable ”
‘‘ apparently thoroughly alarmed’’
‘‘a man of perseverance’’
‘ha man, of patience and politeness”?
“laconic style, barren of comment”
‘ ‘complete and accurate’ &
‘6 inadvertently”
‘topen and straightforward”’
* - ,
*
>
“ attentive’’
- + “following the questions”’ .
‘“tunderstandable”’ - :
** sensitive’
‘*voluntarily’” nh J
‘‘a man with a mission and with a nervous stomach”’ :
(ef. Judge DeVane’ s dissent— “Considered as a brief
(in support of appellant’s case, the decision of J udge
Wisdom i is-a masterpiece. my
J!
The University of Mississippi is’ an ‘ebudations! insti-
tution. .Its Chancellor and its Registrar testified without
equivocation or contradiction that no qualified applicant
had been or would be denied.admission to that institution’
on the grounds of race or color (R. 527; T.R. on Prel.
Inj., Piaintiff’s Exhibit 16, Page-223). The Court of
Appeals stated that no statute Hanite admission to the
+, :
g
; —_ erroneous, UX,
16 | nes Meredith v. Fair; Et Al.
University of Mississippi on account of race, creed or.
color. The Board of Trustees testified that they had not -
taken any action whatsoever with respect to limiting the
admission of negroes to the University of Mississippi
since the date of this court’s- decision in Brown v. Board:
of Education, 349 U. S. 294, 99 L. Ed. 1083, 75 S. Ct. 753,
(R. 498, 504, 506, 515, 534, 546, 551 “092, 523,, 055-556, 557).
Despite the uncontradicted proof in thesrecord’ and »
despite the trial court judge’s determination,.supported
by credible and substantial evidence, that no discrimina-
tion. was: applied in the registrar’s ruling on Respond- .
. ent’s application, the Court of Appeals infe -rred that the
application was turned down solely because the applicant
.Was a negro. W ‘th defereiice to the Honorable Court. of
Appeals, we submit that its inferetice was unwarranted
. National Real .Estate Boards,
‘1007, 70 8. Ct. 711.
oO f.. S. 485, 94 LL. Ed.
This amounts fo the\substitution of speculation for
— proof, -which is not _permissible under the decisions of
this poy Moore v. Chesapeake & Ohio R. R. Co., 340
ULS. : 95 L. Kd. 574, 71 8. Ct. 428; Galloway v. E Se.
319.U, i. S12, 87 L. Kd. 1458, 63'S. Ct. 1077.
‘Where thie uncontradicted proof is that discrimination.
was not and will not be practiced, inferences cannot be
drawn which will produce a-contrary firiding or result.
Pennsylvania R. R. Co. v. Chamberlain, 50 F. 2d 734, cert.
den. 288 U..S. 333, 7 L.Ed. d. 819, 53 S.Ct. 93.
As. one ‘iieeibiis of the appellate court’s réasoning, pe
_ which we respectfully submit i is not logically correct, we
would. direct this Court’s attention to the comments in
the opinion concerning the results of Respondent’s ex-
_ athination of the files of students who were denied ad-
9
Meredith v. Fair, Ef Al. | - 17
Koi — —
mission to the same summer session of the University to.
_ which his application was genied. _Lengthy proof was
made in.an attempt to show that each of these students
-who were denied admission had scholastie records which
were not as good as that possessed by the Respondent.
- In the absence of the showing of even one student who
was admitte ‘d to these sessions with a record similar to
“not.as good as that ‘possessed by: Respondent, the
mealies court inferted that he had been the subject of
discrimination. With all due deference, we submit that
it is illogical to é¢onclude. that any quantum of proof
that others were denied adniission can constitute proof
of discrimination. Even if it be granted, for the. sake of
-argument, that Respondent was the best’ of -all those
denied admission, it: cannot substitute for proof that
some others not as well situated were admitted, On the
other vhand the very fact that. Respondent made sueh a
lengthy examination into and proof of the application of
the University’s regulations concerning admissions from
non-aceredited schools carries the connotation that Re-
_ spondent recognized.the University’s right, if not respon-
sibility, to have this reasonable standard governing the
‘class of esas: {rom which transfers would be ae-
cepted. : |
«
!
Being mindful that, under the rules promulgated by
this Court, decisions of ract made by a trial court are not
to be set aside on appeal unless eles arly erroneous, and
* due regard, i is required to be given to the opportunity of
the trial court to judge the credibility -of the witnesses,
{Federal Rules of ¢ ‘ivil Procedure, Rule 52(a)}, we would
respectfully direct the Court’s attention to the following
analysis and finding by. the Honorable: Fifth Cireuit.
In the course of cross-exé amination about Respondent’ s
ry
a
- s. * S
te
18 Meredith i. Fair, Et Al.
.
_ registration to vote. in Hinds ‘County, Misstesignl (at
. the sap time he was, claiming to the University of Mis-
sissippi that he was a resident of Attala County), counsel
for Petitioners asked Respondent if he swore that the
contents of an apeton for poll tax were true. ‘His.
answer Was: .
“,: “Yes, sir.’’
The questioning coritinued, ,with Petitioners’ counsel
asking if the oath was made by Respondent at a time | ©
when Respondent knew it was untrue. The answer was:
99
‘*A. Maybe I did, but the circumstances was such.. a
There followed an explanation that he had orally told |
the Registrar that he was not a resident of Hinds County.
_ He was just there as a student. This question and answer
’ then followed:, | - : .
‘*Q. “My question is, James, you knew it was untrue?
“A. Yes, sir.”’ .
‘(Plaintiff’s Exhibit 16, pages 86.) -
_ The trial judge before whom this testimony was given,
Breferring to Respondent, stated ;
“He admittéd that he knew he was not.a citizen of
Hinds County, but that he knew he was a citizen of
Attala County, ‘and finally, on cress-examination, he
admitted that he knew he was swearing falsely when
he swore to the Registrar: of Voters in Hinds ar
Mississippi that he-was a ‘citizen of that county.’’
The Court of Appeals, on the basis of the written —
record alone and without the opportunity of the trial
judge to hear and see the witnesses’, inflections and
demeanor, stated that-the affirmative answers given by
‘Meredith v. Fair, Et Al. 49
the Rexpondeas “simply indicated”? that: aig cratos
‘“was attentive and following the questions.”’
We respectfully submit that in going bey ond the find-
- ings of the District Court and in making original deter-
minations of fact, especially findings of fact on which .
the lower court, on the asis of substantial evidence, had
clearly indicated a.contrary determination should be
made, the Honorable Court of Appeals for the Fifth
Cifeuit exercised not appellate teview jurisdiction but
orginal jurisdiction contrary to the-spirit and intent of
said Rule 52 (a) and the statute vesting only appellate
jurisdiction in said couft, Title 28 U.S. Code, Section
1291, cae ‘
The appellate court, we submit, followed another in-
correct and untenable line of reasoning when it dedueed -
that the Board of Trustees had some sort of affirmative
duty on the day of the Brown v. Board of Education
decision by this Court to adopt a resolution or commit —
some other positive act amounting to a ‘‘me too’’ adop-
tion, ratification or approval of this Court’s ruling and,
that, failing in making proof of such an act, there would
be a type of presumption or ‘inference that the Board
was engagedein unconstitutional discrimination. Accord-
- ing to the Court of Appeals, the Respondent, in meeting
the burden of proof which he assumed as Plaintiff in the
trial court, thus was not requifed to ‘offer proof that he -
(1) was qualified; (2) filed a p oper application, (3) was —
' denied admission because of constitutionally impermis-.
sible discrimination. Rather, the Court of Appeals ruled
that the Board’s failure to take actién gave rise to a
presumption that they were violating the. Constitutional
rights of plaintiff. We submit the proper presumption
should have been exactly the opposite, to-wit : Public
290 ‘Meredith v. Fair, Et Al.
officials will fairly. and evenly perform their duties - ‘ac-
cording to law. a
In the course of its opinion, the Court of Appeals de- x
clared Respondent to be’ ‘*just about the type of negro
who might be expected to try to crack the racial barrier
_ of the University of Mississippi; a man with a mission
and with a-nervous stomach”’ (A. 76). ‘It is abundantly
clear from the decisions of this court that any state action
in which race, color or creed is the determinant for grant-
ing or withholding rights or privileges, is constitutionally
‘impermissible; but it is equally axiomatic that no state’s
.institutions of higher learning are ‘ound to admit as
students‘persons who do,not seek to enroll in furtherance
of educational purposes. Respondent’s motives in apply- -
‘ing for admission-to the University of Mississippi must
- be of prime consideration to the officials of that Univer-
sity in determining the propriety of his application and
' admission as a student. While Respondent cannot be
denied admission because he is a negro, it is equally true
that his race does not entitle him to special treatment or —
_consideration., The University of Mississippi is not a
' “*missionary’’ institution. It does not exist. except to
accomplish its ‘purpose :
‘‘The University i is a community of teachers ‘and stu-
dents bound together by a common love for learning
* and by their cooperative efforts to preserve and in-
crease our intellectual heritage.’’ (Plaintiff’s Ex. 42 ~
on Temporary Injunction) (A, 127).
' The Registrar’s uncontradicted testimony was that he
would have no choice but to deny Respondent’s applica-
tion, if it were reviewed at that time [January 16,.1962]
(R. 670), for the reason that he was convinced that
. s
-
\
—_ eS
* + Meredith v. Fair, Et y | : oy
Respondent was a man who was trying to make trouble
because he was a negro and hai a race-based psychologi-
cal problem (R. hes He continued, stating : 2
Mey have seen some of the material to which he testified
that he had knowledge and that bh participated i in the
publication, which indicates to a man that is not
trying to be a student for the sake of learning a pro-
fession’ or getting an education, but a man who ha: has —
“ggt a mission in life to correct all/the ills of the w orld;
so I am ‘convinced this man is-a trouble maker and [
think he- would bea very bad influence at my institu-
tion.’’ (R. 683).
The record contains substantial evidenee to support the |
Registrar’s conclusions, Just because an individual judge.
_ or justice would act differently from the Registrar if
that judge held such a position with the University is
not a sound reason for assuming the powers and preroga-
tives’of the Registrar’s office. The Registrar’s decisions
‘should be aceepted absent a clear showing of abuse of
discretion, which this record does not disclose. Respond-
ent would not be admitted as a student if he were a.
chinese, eskimo, white man or member of any other race.
Indeed, it is doubtful that any court would even entertain
such a suit as this without employing the obtuse or deduc-
tive reasoning apparently employed by the Court of Ap-
peals that because this case arose in Mississippi, and
because the plaintiff is a negro, therefore, unconstitu-
tional discrimination will be presumed and he must be
entitled to’ special, not equal treatment, and special, not
usual relief, far over; above and beyond the prayer of:
his Complaint.-
29 ~~ Meredith v. Fair, Et Al.
IE.
‘The Honorable Court of Appeals for the Fifth Circuit
_ erred in ordering the entry. of class action relief in:
a this cause. Soils ST
It is Petitioners’ position ‘that no relief should have
been granted in this cause to the Respondent, but it is
particularly submitted that the Honorable Court ‘of Ap-
peals erred in granting class action relief i in this cause. .
Federal Rules of Civil "Procedure, Rule 23 a. defines
the prerequisite proof which must be made before class
actions are premitted. —
(1) The persons constituting the class must be so
numereus as to make it impracticable to bring them
all before the Court;
(2) . The one or mor¢ bringing suit must demonstrate
that they adequately represent all who may-sue or be
sued as such class; and -
( 3) That there must be a common ential of law
-or fact affecting the several rights of the members of
the class and common n relief must be sought.
‘The only place in the record in which mention is
made of these prerequisites. is in Paragrap ~4 of the
Complaint (R. 5). The allegations of this paragraph ‘were
denied under oath (R. 10). No proof whatever was offer-
‘ed on this point. Neither the trial court nor the appellate.
_ court made or purported to make any determinations’.
on (CO Gr ee ~~~
~~
with regard thereto. ef: McCabe v. Atchison, T.€ S. PF. -
_Ry: Co., 235 U. 8, 151, 59 L. Ed. 169, 35 8. Ct. 69; Weeks
-v. Bureco Oil Co., 125 F. 2d 84; Moore’s Fed. Practice & .
Proceédure,. Vol. 3, § 25.04.
. Meredith v. Fair, Et All 23
Class actions under Rule 23 (a) (3) are characterized
-as.‘‘spurious’’ actions. They are a permissive Joinder
+ device—merely’ an invitation te- join in Ahe action.
Moore’ 8 Fed. Practice & Procedure, Vol. 3, 3 25.10. No |
pap Gennes. «aoe
person other * {hai Respendent. thas, joined or sought to
ieee
_ . join or was shown to be represented or to have requested -
representation: in this action. We respe -etfully submit
that to grant class aetion relief in ‘such a posture of the
_reeord is a clear violation. of theprovisions of the rules:
and correct practice.
ILL. .
- The Honorable Court of Appe ale erred in issuing and
‘dire -cting the lower court to issue @ mundatory imjunc-
tion requiring respondent's admission at- mid-session |
and denying the Registrar and other officials of the
University of Mississippi the discretion to act as such
officials on Respondent's: application w ithout notice
_or hearimg. & 3
This Court is clearly committed to the ®ule that a col-
lege has the right to disthiss a student st any time to
preserve the ideals of scholarship or a more] and proper
-. educational atmosphere. Such a dismissal may properly
follow from refusal to abide by state requirerments that
the student disaffirm allegiance to‘social frat°rnities or
accept the burdens-of military training, or school disei-
plinary regulations or f rom the ¢ erreation of disturbances.
A fortiori, an applicant for admission may be denied
admission on the same or any similar basis. W augh v..
' Board of Trustees, supra; Hamilton r. Board of Regents,
supra; Steier v. New York Commission, 971 F. 2d 13,
> (ert. den. 361 U. S. 966, 4 L. Fd. 2d 547, 80'S. Ct. 587;
Lucy v. Board, 134 F. Supp. 235, aff. 228 F. 1 619. It is
- 94 Meredith v. Fair, Et. Al.
_ also. proper and reasonable for the officials of the Uni-
versity of Mississippi to conduct the schooling offered by
the University on the basis of organized semesters and —
sessions which have a time of beginning and close at
which classes are commenced and continued on a timed
schedule, yet, the orders of July 28, 1962 place it entirely
at Respondent’s option as to whether he will enroll him-
self.in the middle of this present session or-‘‘in Septem-
ber’’, without: any’ specification in regard to the com-
mencement of the September term.
The st rong arm of Equity, its injunctive process, should
not be so utilized, to overrule a positive and reasonable
regulation of a university, nor should it be used to so
absolutely deprive the regular officials of-the Univer
sity~of the discretion which this Court has expressly
held they possess. Even if the Court were convinced
Respondent had. been wronged by Petitioners, (which
he has not) the injunctive process should not be used
punitively as is here done. Disruption of the Univer-
sity's schedules catinot aid any educational. purpose.
The injunction also compels Respondent ’s admission
now on the-basis of. facts apparent from a record, which
has been closed for six and one-half months. Such .ad-
mission is commandéd without regard to facts or cir- —
cumstances which may have occurred in the interim or -
facts learned since the trial that may have an immediate
or important bearing on his admission or qualifications.
With all deferenge and respect, we submit that theeman-
a datory injunction issued without notice or hearing was
improvident, inequitable and incorrect and should be set:
aside. While it is recognized that the Federal Rules of
. Civil Procedure are not directly applicable to Courts of .
Appeal, we submit that they set a practical and equitable.
Meredith v. Fair, Et Aj. : . 25)
guide for what is considered ‘* this Court to be appro-
priate. procedure with regard to the issuance of injune-
tions. ef. Federal F ules of Civil Procedure, Rule 65 (a-d),
(A. 117). :
IV. | |
The action of the Honorable Court of Appeals resulted
in the decision of an important state question im a way ©
amd. conflict with the applicable ¢ ‘onStitution one Laws
of the State of Mississippi... /
Section 213-A of the Missinelppi Constitution of 1890 :
vests the management and control of all state institutions
of higher learning of the state in a Board of Trustees -
constituted ynder that section. This Board promulgated
a ruling requiring applicants for admission ‘to univer- ~
sities and colleges under its jurisdiction and supervision
to submit certifi icates-as to their good moral character
and recommendations for admission to the uniw ersity or
colluge applied for from alumni of that ‘school residing
in the county of the applicant *s residence. Non-residents
of the state were r required thereby to furnish similar cer- —
tificates and recommendations from responsible citizens
- (not necessarily alumni),in their community. (A. 124).
Respondent recognized the validity of the spirit and
intent of this requirement and submitted such certificates
and recommendations from citizens in the community
wherein he claimed to reside. However, the Court of Ap-
peals ruled that the regulation was invalid and that
negroes could not be required to furnish such certificates
and recommendations, either from alumni or from citi-
Z°n8 generally (a position even Respondent was unwilling
to adopt). The Court ‘recognized the Board’s regulation
as an administrative order having an effect similar to a
de
26 ‘ "Meredith v. Fair, Et Al.
statute, but held that they had the power to declare such
regulation ‘manifestly’? unconstitutional, thereby dis-
_ pensing with any necessity for the convocation of a three- —
_judge court under Title 28; U.S. Code, Section 2281.
This question has never ‘been presented to or ruled
- upon by this Honorable Supreme Court. With deference,
Petitionérs submit that this regulation is neither ‘‘mani-
festly’’ nor otherwise unconstitutional., Indeed, the Court .
of Appeals, while partially invalidating the regulation
(as to’ negroes only) held that good moral character was _
_ @ proper requirement for college admission and attend-
ance.
Colleges and Universities certainly should be ‘able to
require an applicant to demonstrate, in connection with
his application, some reasonable evidence of his suit-.
‘ability as a student from the ‘standpoint of moral char-
acter and ability to pursue college level work. If the
ruling of the Honorable Cireuit Court of Appeals is cor-
rect, then the burden of the regulation falls only on
members of races other than the négro race ‘and there is
‘created by such ruling at impermissible race-oriented
state action. o 7
The basis for this ruling is indicated to be the paucity
of college alumni of. the negro race, At some .indeter-
minate.future date, under the present rulings of this court,
the number of such negro alumni must be calculated to_
increas® When the number will be sufficient to over-
comé the aspect of numerical inequality is left in-doubt,
_ and, as stated, the Court of Appeals recognized that, dis-
regarding init number differences, there should be no
- doubt as to the Board’s power to utilize suck —
of information. .
Meredith v. Fair, Et Al.. | 27
as
Altogether the question as to the invalidity of the reg-
ulation, especially where Respondent made no atte.npt
whatsoever to secure such recommendations, should have
received the consideration required by Section-2281 ; that
ix, it should have been determined by a Court composed
of three. judges. where. its meanings and ramifications
woukd have received ‘the statutorily required ‘considera-
tion and determination. ae .
V.
The actions of the oncrable Court ) Appeals for the
Fifth Circuit subsequent to the issuance of its man-
date constitutes such.a de parture from the usiwal ana
accepted: course of 4 dicial procee dings as to call for
the exercise of this Court’s supervision.
On the 17
or indirectly affecting the parties or subject matter of
this action. No ¢hange of position or circumstance has .
éecurred with respect to the subject parties. The only
thing which has occurred subsequent to the issuance of
such mandate was the grant of a stay of the execution
and enforcement of the mandate for a reasonable time
under the provisions of Title 28, U. S. Code, Section -
2101 (f), to enable Petitioners to file this petition for
certiorari in this ( ‘ourt.
Rule 32 of the Rules of the U. S. C el of Appeals for
the Fifth Cireuit provides that ‘‘a mandate once issued
will not be recalled, except by the court and to. prevent
' ingustice.’’ We respectfully submit that the issuance
of the stay by the Court of Appeals: Judge under the
clear prov isions of statute, could’not constitute an ‘‘in-
-
day of July, 1962, the Court of Appeals as
issued its mandate to the lower court. Since that date this .
_ Supreme Court has rendered no decision or order directly
28. _ Meredith v. Fair, br Al.
justice’’ within the meaning of its. rules. No power existed |
in the Court to recall its mandate in this instance, and its
subsequent, proceedings contrary to its own,rules were
without i jurisdiction and power and thefefore a nullity.
When such. stay order Was granted, the judge granting
_ . the same accepted both the motion for the stay and the
‘order granting the stay*for filing, marked each such
instrument ‘‘Filed’’ and directed the counsel who pre-
sented the same to immediately deliver these instruments
to the office of the clerk of. the Fifth Circuit in. New
Orleans. This was done on July 18, , 1962. Céunsel at
‘that time requested the clerk to furnish counsel with a
' certified copy of the stay order signed by the judge. The
clerk advised counsel that the ‘‘Court’’ had directed the
clerk’s office not to take any action whatsoever with
regard to such order and not to furnish a certified. copy
thereof to’ anyone (see affidayit of counsel, A. 134).
Concurrently with the delivery of said order, counsel for
Petitioners requested the clerk’s office to prepare a cer-.
tified copy of: the record of proceedings ip the Court of
i Appéals and to furnish such certified copy to Petitioners
for use in connection with the filing of this petition. This -
latter request was subsequently reiterated in writing. On .
J uly 25, 1962 the clerk advised counsel for Petitioners by’
letter that he was not ‘‘authorized’’ to furnish a certified
_ copy of the transcript but could only furnish such certi-
fied copy when the court ruled upon motions filed with
it in accordance with its previous directive (A. 131).
On August 2; 1962 the certified transcript was received
’ by counsel. Petitioners respectfully submit that the clerk
of a court of’record has a duty to furnish copies of public
records in his office to’anly person willing to pay the -
_ proper charges therefor, (no question was ever raised ©
/
| |’ Meredith v. Pair, Et Al... /*29
f
concerning the payment or tender) and the action of the
. Court of Appeals in preventing the clerk from performing
these routine duties was erroneous, .
On the 20th day of July, 1962, the clerk of alae C ‘ourt
of Appeals telegraphed counsel for Petitioners and Re-
spondent that the court directed the parties to file state-
* ments of position and memorandum briefs with the, said
court ‘‘for or against the granting of any stays, including
the vacating of the stay entered by Judge Cameron, the
issuance by this court of injunction pending further ap-
peal, or other appropriate action’’ (A. 133). On the 27th -
and 28th days of July, 1962, the Honorable Court of Ap-
_ -peuls issued the following:
“ (1) “ORDER. VACATING STAY, RECALLING
MANDATE, AND ISSUING.NEW MANDATE .
FORTHWITH,”’ dated July 27, 1962;
(2) ““ JUDGMENT” dated July 27, 1962, issued as and
for the mandate of the court on the same date ; and
(3) “ ORDER,” entered July 28, 1962.
‘In these instruments the Honorable Court of Appeals
stated thaf it was: recalling its mandate issued July 17,
~ 1962, vacating the statutory stay granted under Title 28,.
U.S. Code, Section 2101 (f) on the grounds: that it was .
- unthinkable that a judge not possessed of the knowledge
and information gained as a participating-panelist could
act under said statute to grant a stay pending application
for cértiorari to this court; immediately issuing a judg-
ment as and for’ the mandate of the court on the date
said decision was made, (ef. Rule 32 of said eourt’s rules
providing in part, ‘‘ Mandate shall issue at any time after
21 days from the date of the decision, unless an applica-
~
30 ~—Ss Meredith v. Fair, Et Al.
tion for rehearing has ‘been granted or.is pending.’’) ;
issuing a‘ preliminary injunction without notice or hear-
‘ing. we 8 public officials of Hinds County, Mississippi.
‘not pa
s to this action, enjoining them from proceeding
with a criminal action; and, mandatorially enjoining »
Petitioners to imme dbutely admit Respondent to the Uni- |
versity of Mississippi during the course of the second
summer session, or, at Respondent’ s option, to admit him
‘tin September,’’ and further mandatorially enjoining
Petitioners from excluding: Respondent from continued .
attendance at the University for an unspecified length —
of time.
* This action was in the form of an injunction issuing :
directly from said Court of Appeals. —
‘Petitioners, feajleckialiy submit that these proceedings
"constituted such total and. unique departure from the
usual and accepted course of judicial proceedigig gs as to
call for an exercise of this: Honorable Court’s power of
supervision to correct such departires.
Section 2101 (f) of Title 28, U. S. Cade , clearly delin-
eates the howers which €' ongress intended ‘to vest in
members of the judiciary to grant stays of the execution
and enforcement of orders made by final appellate courts
of states: and interthediate appellafe or lower courts of
the Federal Judiciary in connection with the review. af
decisions of sucli egurts by this Honorable Supreme Court
which is, under the Laws ‘of these United Stateés, the final .
arbiter ef judicial correctness: The statute does not con-
template or require a judge of the court rendering the
decision, or a justice of this Honorable Court to be pos-
sessed of 5 particular modicum of knowledge or famil-
}
iarity with
.
1e intricacies of the proceedings involved.
. Meredith v.Fair, Et Al, . ~ 31
This € ‘oni in deciding whether or not a Writ of Cer-
tiorari should i issue will consider whether the trial court
judge and the dissenting member of the Court of Appeals |
panel were correct in their determination that the Re-
spondent w as not a proper. applicant or w hether the other
two judges: of the Court of Appeals were correct in ‘thieir
inferences that Respondent was the subject of unconstitu-
tional discrimination. -Petitioners respectfully submit,
however, that it was both logical and improper ‘for the
Court of Appeals to set aside the statutory stay on the
basis that they could not be wrong in their determina-
_tions. One of this Supreme Court’s principal functions
. is to review determinations of inferior appellate tribunals
to make their own determinations of errors or-éorr ecthess
in proceedings there.” =
_ The judge who granted the stay was obviously of the
opinion that if there was error in the Court of. Appeals’
. determination, it fas more important to~ preserve thre
educational atmosphere of a university from the effects
of Respondent’s determination to accomplish his own
“‘missionary’’ or non-educi: itional objectives than it was,
if such decision be. correet, ta secure the instantancous
transfer of ‘Respondent froma college Where he. could
- have achieved an undergraduate degree already to a’
school where he must necessarily remain for a minimum
of a year (A. 128). | f:
Respondent w nited more tide nine (9) years after his
| high school graduation to ever make application to attend
_the University of Mississippi. The time required to per-
mit this Court’s ‘review is certainly relatively inconse-
quential. ro
The principles governing the vacating of such a stay
have been thoroughly considered and reviewed and dis-
x
320 Meredith v. Fair, Et Al. -
cussed by this court in the case of Rosenberg v. U: S., 346
U. S. 273, 97 L..Ed. 1607, 73 S. Ct. 1152. In that case this -
cvurt pointed out that it had the inherent power to vacate
a stay, which power ‘‘derives from this court’ s role as.
the final forum_to render the ultimate answer to the
question which was preserved by the stay.”’
Petitioners respectfully submit: that it is more appro-
priate for a single judge to stay the execution and en- --
forcement of a Judgment and Mandate issued pursuant
te the opinion of two judges of the Court of which he is’
‘a member, than for any number of judges of an intérmed-
iate appellate or state court, whose decisions are subject
to final appellate review in t’.is Court, to act to set aside |
‘such a statutory stay procedure pending review by this
Court.
A question arises here which issataliniaile the Court of:
' Appeals’ two fo one - determination that Respondent
should prevail. It is a matter of how orderly and correct
judicial determination of a controversy lodged with the
_ eourts should proceed -and be rev iewed by this court.
Petitioners respectfully submit that this procedural ques-
tion should not be dispensed with by a ruling either way
on the merits of the petition. Justices of this court are
frequently requested to grant stays of the type granted
by Judge Cameron. If the court adopts the reasoning of
’ the Court of Appeals, then no Justice could act on such
a stay unless he participated in the panel’ s discussions
and deliberations. Section 2101. (f) should not be so
strictly construed. This procedure is one in which. liberal
or conservative, federalist or states’ righter, white or
negro, all should have a common and equal interest. It —
may well be that Mr. Justice Black’s remarks in his dis-
sent in Beauharnais v. Illinois, '343.U. S. 250, 96 L. Ed. .
‘Meredith v. Fair, Et Al 38
919, 72-8. Ct. 725, are completely apropos here. To hold
that in all cases a majority of Court of Appeals or other
inferior tribunal must have the ultimate right to control
actions under Section 2101 (f ) might, in the future, qual-. —
ify with any one of such special interest groups for the
deserfption: ‘‘One more such victory and we are un-
done.’’- —
*
34, ss Meredith v. Fair, Et Al.”
CONCLUSION
It is respectfully’submitted that certiorari should issue
to the Court of Appeals to review the decisions above
enumerated so that this Court can deeide the serious and _
important questions presented by this Petition.
Respectfully submitted. |
CHARLES DICKSON FAIR, President of the
“Board of Trustees of State Institutions of
‘Higher Learning of the State of Mississippi,
et al,’
PETITIONERS
BY: JOE T. PATTERSON, Attorney General mk
of the State of Mississippi .
: DU GAS SHANDS, Assistant Attorney
' ++ General of the State of Mississippi
PETER M. STOCKETT, JR, Special
_ + Assistant Attorney-General of the
State of Mississippi
CHARLES CLARK, Special Assistant
Attorney General of the
State of Mississippi
P. O: Box 1046
Jackson, Mississippi
| Charles Clark |
Meredith v. Fair, Et Al. © 35
3° ERT IFICATE OF SERVIC E
a Charles Clark, one of the attorneys for Petitioners
liercin, and a member of the Bar of the Supreme Court .
of the United States, hereby. certify that on the date
_ shown below, I served the foregoing P ETATION FOR
WRIT OF CERT IORSRI TO THE U NITED STATES
“COURT OF APPEALS FOR THE FIFTH CIRCUIT
on James H..Meredith, Respoudent, by mailing true
copies thereof to Constance B. Motley, Esq., 10 Columbus
Cirele, New York, New York, airmail, postage prépaid,
and to R. Jess Brown, Esq., 1105-1/2 Washington Street,
Vicksburg, Mississippi, by first class mail, postage pre-
- paid (the distance being less than’500 miles); the Attor-
neys of Record for said Responde nt.
Dated this JE as of August, 1962.
ks/
- ‘CHARLES CLARK °
Attorney for Petitioners
Post Office Box 1046
Jackson, Mississippi
}
IN THE UNITED STATES
DISTRICT COURT.
FOR THE JACKSON DIVISION OF THE
‘SOUTHERN DISTRICT OF MISSISSIPPI
&
No. 3130
JAMES HOWARD MEREDITIL Plaintiff
Vs. ; i
CHARLES DICKSON FAIR, ET AL > Defendants
ee ee Sates on
OPINION OF TILE COURT:
Plaintiff, James Howard Meredith, is a member. of the
Negro race and a citizen of Mississippi. He filed his
-complaint on behalf of himself and of other Negro stu-
dents in the State of Mississippi similarly gituated. He
seeks a preliminary and permanent injunction enjoining
the defendams from refusing him admittance to the
University of Mississippi and for a declaratory judg-
nient. The defendants in the ease are members of the
Board of Trustees of State Institutions, the ‘hancellor
of the University of Mississippi, the Dean of the ¢ ‘ollege
of Liberal Arts, and the Registrar of the University.
“The management and control of the University ‘of
- Mississippi and all other state institutions of higher
learning i in the State of Mississippi is vested i in the Board.
James - Howard Meredith filed his complaint on the
Sist day of May, 1961 and alle geod that he had been de-
pr ived of rights secured to him by the Constitution of the
United States in violation of: Title 42, U.S.C. See. 1983.
‘ , i ‘
A2. _ Meredith v. Fair, Et Al. a >
. He alleged that the University of Mississippi is limited
by policy and custom to students on a segregated basis
_ only. The defetidants answered and denied the material
allegations of the complaint, particularly that part where —
he alleged that he was denied admittance solely because
of his race. Plaintiff further alleged that certain rules
and regulations of the University of Mississippi have’
been improperly and unconstitutionally applied to him
and avers that he was not accepted as a resident under-
graduate transfer student solely because lie is a Negro.
- This was denied by the defendants.
Concurrently with the filing of the complaint plaintiff
moved for a temporary restraining order without notice.
This application for preliminary restraining order with-
out notice was alenied by the Court on the ground that
‘notice of application, should have been given to the de-
fendants. Concurrently with the filing of the complaint
_he also filed a motion fora preliminary injunction and -
this motion was noticed for hearing on the 12th of June,
1961 at Biloxi, Mississippi, at which timé it eame on for
hearing. This motion specifically related to the summer
session of the University of Mississippi beginning June
8, 1961. The motion was called for hearing on June 12
and before the beginning of any proceedings the Court
~ Inquired of counsel.on both’ sides as to whether or not
the motion was to be heard on affidavits or on oral testi-
_ mony. Attorney for the plaintiff advised the Court that
she desired to proceed on oral testimony and the trial
Was thereupon begun upon’ the application for the pre-
liminary injunction., Not having finished the case during
that day and because prior to this time other matters
had been set for hearing on the following day, the Court .
* recessed this hearing until July 10, 1961. On. June 29,
Meredith v. Fair, Et Al. A3_
1961 plaintiff filed another motion for preliminary in-
junction, praying that the Court would enjoin the defend-
ants from refusing to admit plaintiff to the second sum-
mer session commencing on July 17, 1961 solely because .
of his race and color, On July 10, pursuant to the former
order of recess, the Court met and at that time was, ad-
_vised, that the Jeading, counsel for the defendants was
seriously ill and that his physical condition prevented
hix attendance at the hearing. The Court heard this
-matter and from the affidavits and from doctors’ cer-
tificates determined that it would endanger the life of
leading counsel if he were compelled to proceed. He is
the first Assistant Attorney General of the State and
-has taken the leading part tliroughout all hearings and
the Court determined that sound diseretion dictated out
of necessity that it. should again recess the hearing to
_ the next available date, whieh was the 10th of August.
On that date counsel for plaintiff announced in Open ,
court that she would withdraw her motion for prelim-
inary injanetion relating to the date of June 8, 1961 and
the Court granted .her leave to withdraw that motion
and gave her permission to file a later motion, but a.
later motion was not filed. However, the one that was
filed on June 29, 196] was left pending and it- was this
motion that was taken up for hearing on August 10 and °
proceeded to a conclusion-on August. 16. It is the eon-
tention of plaintiff that although the July 17 séssion—
the second’ summer session—was past, yet it was. the
duty of the Court to proceed and determine if a prelim-
inary injunction should be granted for the remainder of
the summer session or for future+terms ‘or sessions of
the U niversity of Mississippi. No application had beh
. filed with the authorities of the University of Mississippi
other than the one mentionad in the original complaint.
warn
A$ Meredith v. P-'r, Et Al.
In his original complaint the plaintiff alleged that on
the first day of February,”1961 the Registrar of the
University of Mississippi received by registered mail
an application from the plaintiff for. admission tg the
mid-year or 1961 spring session, which commenced on
February 6, 1961. In-that application he represented
himself to be a citizen of Mississippi, having a perman-
‘ ent address at Kosciusko, in Attala County, Mississippi,
and a thailing address in the City of Jackson, Hinds
_ County, Mississippi. In his application he stated that he
applied to be classified as a junior in the College of
Liberal Arts. The Court finds as a faet that he did make
application by that letter and that in response to that.
request forms for the listing of the names of six alumni
residing in the County of plaintiff’s residence, who had
known plaintiff for at least two years and who would
certify him ds a person of good, moral character, and
would recommend him for admission to the U niversity
of Mississippi, but as a matter 6f fact these forms were
nevér furnished by the plaintiff. Instead, he sent five
certificates addressed ‘‘To Whom It May Concern,’’
. certifying that he was of good moral character, none of
_ Which were signed by persons who were alumni of the.
University of Mississippi. On the 4th day of February,
1961 the Registrar telegraphed plaintiff ‘and all other
applicants whose applications had been receiyed after
January 25, 1961 that fhe University had found it neces-
sary to discontinue consideration, of all applications for _
the Spring, 1961 mid-year semester rcveived subsequent |
to that date. The facts show that this was due to an
overcrowded fondition existing in the University class-
‘rooms and dormitories, which had been recognized and
_ had been under consideration by the University Com-
mittee on Admissions since October, 1960 as a part of an
ey
gs
' chia we v. wlenvesed Al. - Dd
over-all play to upgrade the quality of educational oppor-
_ tunity afforded by the University. This applied'to: ‘all ap-
‘plications made‘ after January 25, 1961, without any re-
- ~ gard to the race dr color of the applicant. The testimony
shows without contradiction, and I find as a fact, that
many other potential applicants who made inquiry about
. applications subsequent to February 4 were similarly
treated and none were permitted to apply for the Spring,
1961 mid-year semester. The testimony shows, and I find —
asx a fact, that there was no discrimination against ‘any
student, and particularly the plaintiff, solely because of ©
his race or color with regard‘o the action of the Univer-
sity of Mississippi.in discontinuing consideration of ap-
plications for the Spring, 1961 semester after the Janu-
ary 25, 1961 cut-off date.
Pep etter dated February 20, 1961 plaintiff responded
“to the Registrar’s cut-off telegram by requesting that his
application be considé¢red as an application for admission
to the Summer, 1961 session beginning June, 8. This:
letter, as well as all subsequent correspondence, was sent
to. the Uniyersity by ‘plaintiff by registered mail, with
returnm-receipt requested, which is an unusual procedure.
. Again on March 26 the plaintiff: wrote the Registrar
admitting that his previous five certificates did net com:
ply with the regulations of th¢ vU niversity ’ in that they
did not recommend his admission to the University of
Mississippi and with tris Jetter he enclosed additional
letters from the same five people which referred to his °
good moral character and also ree gmmended him for
admission to the U niversity, of Mississippi. “On April 12,
1961 plaintiff mailed a letter which was prepared by his
attorneys to the defendant, Dr. Lewis, who is Dean of
the ( ‘oHege of Liberal Arts, which stated that peer
/
"on the ground of race or color.
A6- =~ Meredith v. Fair, Et Al.
~ - )
concluded that the Registrar had failed to act upon his ~
application solely because of his race and coloreand re-
" questing Dr. Lewis to review his case. In response to
that letter the Registrar on “May,9, 1961 sent plaintiff ©
a preliminary evaluation*of erddits indicating a maxi-
mum credit allowance at the University of Mississippi
or 48 semester hours out of a a of 90 semester hours
offered, according to plaintiff s transfer from Jackson
State, College. On May: 15,-1961 the Committee on Ad-
missions at the University of Mississippi met with eight
‘members in attendance. Only twd of these eight mem-
>-bers had any knowledge that plaintiff had applied to
‘the Univ ersity of Mississippi. At this meeting no specific
_ instructions or students we discussed. The Committee
at that time adopted several regulations. _ The action of
' the Committee taken that day affected the award of .
credit for military training; acceptance of eredits from
institutions. which are not members of regional aecredit-
ing asso¢iations; and also problems connected with school -
credits. The undisputed testimony is fhat the adoption
‘of these particular regulations were considered in terms
of the quality of students transferred to the U niversity —
and the adoption of the regulations was a means of im-
proving that quality and was simply a part of a continu-
ing study and action by the Committee on Admissions to
effect such improvément. The testimony is and I find
as a fact that hres action was not taken in any attempt
direct or indirect, to discriminate against anyone solely
Later, in-a letter received by the Uni ersity on May
_ 16, 1961, plaintiff stated i he desired to have his appli-
cation treated as a pendi g application for admission to
the summer session beginning with the first term in
Meredith v. ale, Et Al.” ity” |
7
June, 1961, Many of the credits tendered by the plaintiff
for admission as a transfer student were denied because :
they did not measure up to the regulations required of
all students who applied for admission to the University.
The Jackson State College, where plaintiff was in attend-
ance, was not a member of the Southern Association of
Colleges and Secondary Schools.
Plaintiff contenils and alleges that he is @ ate of
Attala County, Mississippi. The defendants dented this
and they contend that he was a non-resident of the State
‘of Mississippi and net a resident citizen of this State,
and they cross examined him at length about his various -
movements and activ ities. Defendants contend that-whijle
‘he was born in Mississippi, yet‘he changed his domicile
either to Michigan or Indiana and that he never did move
back to Mississippi as a citizeh, but onlyseame back as
a student. On cross examination it was shown that he
was’ mirried to an Indiana girl and that he claimed
Michighn as his residence; that he enlisted i in the Army
from the State of Michigan and not from the State of ©
Mississippis Defendants further brought out on cross.
examination that after he entered Jacksow State College
at Jackson, Mississippi, -he registered in Hinds County,
Mississippi and that when he registered in-Hinds County,
Mississippi he swore falsely that he was a ‘citizen, of
Hinds County, Mississippi and ‘that this was knowingly
done for the purpose of obtaining a registration. lhe
admitted that he knew he was not a citizen of Hinds
r ‘ourity, but that he knew he was a citizen of Attala.
County, and finally, on cross examination, he admitted
that. he knew he was swearing falsely, when he swore
to the Registrar of Voters in Hinds County, Mississippi
that he was a citizen of ‘that county. He stated that he
ve
: | \
AS _ . *Meredith v. Fair, Et Al.
v
°
had always elaimed Attala County as his domicile and
still claims it as his domicile. As‘a result of his false
swearing the récord shows that he was registred as a
voter in Jackson, Hinds Coynty, Mississippi. In deter-
mining whether he is a resident of Mississippi or a non-
resident of Mississippi I have taken this. evidence into
consideration, along with all of the other evidence touch-.
ing on that question, The testimony shows without eon-
flict that he was born and, reared in Kosciusko, Attala
(‘dunty, Mississippi; that he finished High School there
and thereafter took courses in other schools and: while
_he was in the service, but that during all this time -he.
‘claimed Attala C ourity ds his domicile. The record fur-
ther shows that while he was in the: Army he made
investments back in Attala. County, having bought two
> ° . . , , » . r
farms there, The record further shows that,in order for
~" one to register. as a voter in Mississippi he must be a
citizen of the state for a period of two years\and a citizen
of the county and precinct | in which he was‘to register
for a period of one year. It is unnecessary \to ‘detail
further the testimony touching on this question, but 1
find as a fact from all-of the testimony that he was and
is now a citizen of Attala County, Mississippi.’ This
holding 1 is supported by the puthorities of Texas w. ¥ lor-
ida,’ et al, 306 U 8. 398. Ease"
‘There was ar :good ra r of tedimiony introduced i in the
cause, but > very, little eonfliet, and the overwhelming’
. . . . ° . . . }
weight of the testimony is that the plaintiff was not
denied admission because of his color or race. The Regis-
trar swore emphatically and unequivocably that, the race
of plaintiff or his color had nothing in the world to do
with the action of. the Registrar i im denying, his applica-
tion, An: examination of the entire testimony of the
—
Meredith v. Fair, Et Al. : AQ
.
Registrar shows conclu sively’ that he gave no considera-
tionswhatsnev er to the race or the color of the plaintiff
when he denied the application for admission and the
Registrar is corroborated by other circumstances and
witnesses in the ease to this effect. Careful conside ‘ration
was given’to the application and in the honest judgment:
- af the Registrar he did not meet the requirements: re-
quired of all students at the University. This testimony
is undisputed and the testimony ‘of the Registrar wis
not unreasonable, but on the contrary was given openly
and fairly ; ; and in addition to his testimony, of course
there isthe presumption of law that an official will per-
form his duties honestly.” ~. ge ia
The burden of proof, of course; is upon the plaintiff’
to prove by a preponderance of the evidence that his
‘admission was denied because o . his ‘ace or color and
this the plaintiff has utterly failed to do. The action
taken by the Registrar and the other authorities at, the
University was not based to any extent at all on his race .
‘ or-eolor and the plaintiff has failed to meet the burden.
and the motion for the preliminary sie poate should
“de denied, es
An order may therefore be drawn denying the motion
for the teniporary injunction and the case set for final
_ hearing on its merits on January\15, 1962.
‘
This the 12th day of December, 1961. ee
/s/ S.C. MIZE \ .
UNITED STATES DISTRICT JUDGE
\
\
\A
IN THE UNITED STATES
- COURT OF APPEALS:
FOR .THE FIFTH CIRCUIT
No. 19394
JAMES Hl, MEREDITH, on behalf of
himself and others similarly situated — Appellant
vs. |
CHARLES DICKSON FAIR, President
of the Board of Trustees of the state ,
Institutions of Higher csiigtons Kt Al _ Appellee
Appeal from the United States District Court fo or the
Southern District of serene ;
.
we
3 (January 1, 1962)
'B sefore TUTTLE, ¢ thief Judge, RIVES, and W ISDOM,
, Cireuit Judges. |
WISDOM, Cieeuls Judge :
James H. Meredith is a Mississippi Négro in search
- ofan education. Mississippi is one of three states which
dhave not yet t allowed a Negro ¢ itizen to seek an education. +
at any of its State- supported, white’ ’* colle ges and °
universities.'
1 The state- rig oe rted colleges . in South Carolina and Alabama =
also uniracial e University of Alabama, however, is under order
-to admit negroes. Lucy v. Adams, N. D. Ala., — 134 F. —.
a , 228 F. 2d 619, cert. denied, 351 U. S. 931, 350 U
(
Al2 — Meredith*v; Fair, Et Al.
*
After graduation from high school t the age of seven-..
teen, Meridith voluteered for the Pnited States Air
Forée. He was honorably discl d uine years later.
During his years in the service, he acquired thirty-four
semester credits by attending night courses at the Uni-
versity of Maryland (Far Eastern Division, Tokyo), the
University of Kansas, and W;: ashburn -University: His
A’s and B’s at the U niversity of Mary land show that he
applied himself diligently.? Tn addition, over the years,
Meredith attended -numerous college level courses offer-
ed by the Armed F orces Institute. Jackson State College
allowed him fifty -seven quarter hours erédit for the work
he had taken-at the Armed Forces Institute. After his
discharge from the ‘Air Forces in the summer of 1960,
Meredith returned to Mississippi and enrolled in Jackson
State College, a Negro college in . Jackson. Throughout
_his years of seeking to improve himself, he elected to
study*demanding and challenging subjects indieative of °
a determined effort to obtain a solid edueation. In. the
early part of 1961, Meredith applied for admission to the
" University of Mississippi. At that time he had about
" ninety eredits. W hen asked on the witness stand why he
wished to transfer from Jackson State College to the~
University of Mississippi he said that he regarded Jack-
son State as **substandard.’’, .
January 26, 1961, Meredith mailed focnias applications,
for admission to the University of Mississippi. His letter .
€ e transmittal informed the registrar that he was a Ne.
gro; the forms required a statement of the applicant’s
race and also required him to attach a- photograph. He
jurnished with his application five certificates from resi-
“In the 1958-59 term Meredith was given the grade of B in each
. ” subjects. In the -1959-60 term he received 3 A's, 4 33’s, and
oe
i,
Meredith v. Fair, Et = Al3
- dents of Attala Courity, each certify; ing to his good moral
character. Meredith’ s letter to the registrar stated: ‘1
‘will not be able to furnish you with the names (certifi-
eates) of six University Alumni (as required hy Uni-
versity regulations for admission ) because | am a Negro
and atl graduates of the school ‘are white. Further, 4 do
‘not know any graduate personally.” ‘
February 4, 196>, the registrar wired Meredith that
“it ‘has beer found necessary to discontinue consideration
of all applications, for admission or registration for the
second semester which were received after January 29,
1961.°’ University officials stated that overcrowding at
the University prompted its action. Bie Bi
a
e
February 20, 1961, Meredith wrote the registrar re-
questing that his application be considered **a continuing |
application for admission during the summer session
beginning June 8, 1961.7’ He asked that the registrar’
advise him sath his transeripts from other univer-
_sities had been received and whether he had forwarded
to the registrar all of the information necessary to make
the application for admission complete. In answer, the
registrar wrote him that since the University was ‘*un-
able te accept application for ‘admission,’ the ten dollars
fora roou deposit was being returned,
February 23, 1961,- Meredith wel the registrar and
‘again reqiested that he be considered for admission to
the summer session. The registrar did not reply to this
letter, March 18, Meredith wrote, reque sting that his
-application ‘* be corisidered a continuing one for the Sum-
mer Session and the Fall Session, 196L°" Again he asked
‘‘whether there remains any further prerequisites to
admission.’ Not having reeeiyed a reply by Mareh -2¢
’
Al4 Meredith v. Fair, Et Al.
he wrote the registrar, calling attention to the statement
Catalog, that the registrar “will provide each transfer
student with an evaluation of the credits acceptable to
“inthe Bulletin of the University of Mississippi, 1960 °
o
the University,’’ and asking that he be sént a copy of |
the evaluation of his eredits. In the same letter he for-
warded five amended certificates from the same Attala-
County residents who signed the original certificates,
’ not, only attesting to his good moral character, but spe-
cific ally recommending his admission to the U ni¥ fersity.
“Meredith received no answer frem the registrar to any
of these three letters... On April 12, 1961, he wrote the
- Dean of the College ef Liberal Arts of the University of
Mississippi. This letter (requested) the Dean ‘‘to review
the case with the registrar and to advise Meredith what
admission’ requirements, if’ any, (he) failed to meet, and —
to give (him) some assdrance that. (his) race and color
are.not the basis for (his) failure to gain admission te
the University:’’ This letter produced a reply almost
four weeks later. .The registrar answered May 9, 1961,
stating that the “application had been received and will
recejve proper attention.” As for Meredith’s credits, he
stated that,‘‘under the standards of the University of
Mississippi the maximum credit which could be allowed
is forty -eight semester hours’’ of the total of ninety ae-
cording to’ the transcripts. Meredith wrote on May 15”
and again on ‘May 21, 1961, stating that he still wanted
his application considered as pending.
May 25, 1961, the registrar closed his file on Meredith
With the following letter: .
-“The University cannot recognize the transfer of
credits from the institution which you are now attend-
ing since.it is not a member of the Southern Associa-~
Meredith v. Fair, Et Al. i? AIS /- )
tion of Colleges and Secondary Schools. Our policy
permits ‘the transfer of -eredits only from member
institutions of regional associations. Furthermore,
students may not be accepted by the University from
those institutions whose programs are not recognized.
. **\S Tam sure you realize, your application does not
meet other requirements for admission. Your. letters
of recommendation are not sufficient for either a resi-
dent or nonresident applicant. I see no need for men-
tioning any other deficiencies.”’
May 31, 1961, Meredith filed a complaint in the United
States District Court for the Southern District of Mis-
sissippi against the Board of Trusteés of the State
Institutions of Higher Learning of the State of Missis-
sippi,. the Chancellor of the University of Mississippi,
the Dean of the College of Liberal Arts, and the Regis-
trar of the University. The Board of Trustees, appointed
by the governor with the consent of the, Mississippi sen-
ute, is vested, under the. state constitytion, with ‘the
management and control of all the state institutions of
higher learning. The complaint i filed as a class action
on behalf of Meredith and all. other negro students sim-
. ilarly situated.’ . It seeks to enjoin, at the University of
_ Mississippi and other state institutions of higher learn-
ing, the practice of limiting admissions to white persons.
The particular phase of-the litigation now before this
Court.is an appeal frem ari order of the district court
denying Meredith's motion for a preliminary injurietion
enjoining the registrar at the University from denying
"7
"8 The complaint invokes the jurisdiction of the court and 28 USCA.
$1343(3), alleging deprivation of rights in’ violation of (1) the due
process and equal protection clauses of the Fourteenth Amendment
and (2) 42 USCA. $1983.
AlG Meredith v. Fair, Et Al. >
appellant ’s adinission solely on account of his trace and
color. The motion, which was filed with the complaint,
asked for specific relief with regard to the summer term
beginning June, 8, 1961, but the pleadings and the hear-.
ings show that the plaintiff sought admission to the next
- available term, summer session or regular session. The
hearing on the motion was set for June 12, 1961, four
days after commencement of the first summer term.
About 3:30 p.m. on the afternoon of the hearing the
district judge stopped the hearing and continued the
éase, on the ground that he had set aside only one day’.
to hear the case, beca tse of his ¢rowded docket. The .
case was continued’ until July 10, 1961, at which time,
according to the court, the entire case would be heard
since, ip the interim, the answer would have been filed.
The case could not be heard on July 10, however, because
it conflicted with the trial of a special three-judge court
case. °
Since it was apparent that the first summer term would
be over before the case would be heard," the ‘appellant.
_ Tiled another motion urging the court to grant a pre-
‘ liminary injunction before commencement of the second
term'on July 17, 1961. The motion was fixed for hearing
on July 11, 1961. On July 10, the chief counsel for the
appellee, an assistant attorney general for the state, was
ill. The case was therefore continued until August -10,
1961.
In the two months’ interim between filing of the com-
plaint and the hearing August 10 the plaintiff @ade fi
unsuccessful attempts to take the registrar bd ny go
The first motidn was denied on the ground that the
- deposition could not be/taken before the expiration of
twenty days fron the filing of the complaint. The second .
‘@ ° - Meredith e:Fair,Et AL > | AN
—-
was denied because of, the assistant attorney general's
ill health. The last three were denied on the grounds that
‘the court was ‘‘in the process of trial on plaintiff’s mo-
tion for temporary — ion and i in the exercise of (the)
court "s discretion.’
The plaintiff moved for the production of records of
all <tudents admitted-to the February 8, 1961, term, the
1961 summer, ferm, and the September 1961 term. for
mespection by the plaintiff’s counsel. This motion, filed-‘
on June 20, was not heard until July 27, again because
of the assistant attorney general’s ill health. On August ~
1 the district judge entered an order allowing inspection
of certain records, limiting the inspection; however, to
' applications for admission of “regular undergraduate
cotaater students for — t in the 1961 summer ses-
sion."
The sidialaiak filed his answer July 19, 1961, denying
that any state law, policy, custom or usage ‘limits admis-
sions to the University of Mississippi. to white persons
and denying that Meredith had been refused admission
solely because of race or color. The registrar averred
that Meredith was denied admission use: (1) he had
failed to submit requisite ji certificates; (2) he was
. not seeking admission in good faith; (3) under estab-
lished rules of the ‘Board of Trustees no ‘institution is
required to accept a transfer student unless the*program
of the transferring college is acceptable to the receiving —
institution and in this’ case the prev ious program of
_ Jackson State College i is not a -eept: ible to the: University
because Jackson State College is not a member of the
Southern Association of Colleges and Secondary Schools ;
-and (4) for the reasons assigned inthe registrat’s s letter
of May 25, 196} to Meredith. °
«
.
a
ee
~
© é
|) at. Meredith v. Fair, Et Al..
On August 10, 1961, the hearing was resumed. August
11 it was continued until August 15 in order to allow the.
assistant attorney general to appear in another case.
The hearing resumed August 15 and was concluded on .
August 16,
The dis rict judge allowed the appellee until September
%, 1961, to.file a‘brief and gave the appellant until Sep-
tember 21 in which to file a reply brief. The last summer
SessioN Was over on August 18.°The first semester of the
1961-62 school year began Septeniber 28, 1961.
‘The district judge rendered his decision December ‘12,
1961, denying the plaintiff’s motion for a preliminary
injunction. The court set the case for trial 6n the merits -
on January 15, 1962.
-. In its opinion,-which the district court. treated ‘as
‘findings of fact sand. conclusions, of law,’’- the court
made these findings. (1) Meredith never presented the
aluinni certifieates required for admission; (2) denial
of Meredith’s admission in February 1961. was based on
overcrowding at the University; (3) on May 15, 196_,
the Committee’ on Admissions decidéd, without any at-
tempt to discriminate, io raise scholastic standards by
acceptin, ‘‘eredits only from institutions which are mem-
bers.of a regional accrediting association or a*reeognized’
professional accrediting association;’’ (4) Jackson State
College was not a member of the Southern Association of
Colleges and Secondary Schools‘ and, therefore, many:
* The University regulation adopted May 15, 1961 provides that the
niversity will.“ Its only from institutions which are
U i ? credi nly f instituti hich
members of a regional accrediting association or a recognized pro-.
fessional accredi essosiotion. .
Jackson State College is accredited by the - <9 @ ¥ College
Accrediting - mission and the council’ on a Accredita-.
tion of Institutions of Higher Learning. The College Accrediting
Commission is a statutory body (Miss. Code, ‘1942, §6791.5). The
registrar testified that: he of his own knowledge that Jackson
State College was accredited by that Commission.
,
t
/
/
Meredith v.Fair,Et Al. . ANS
an —
7
of Méeredith’s credits were not acceptable to the Univer- |
sity. The district court .ruled that “the overwhelming
weight. of the testimony is that the plaintiff was npt
denied admissionhecause of his color or race.”"
The appellant file his notice of appeal on December
14, the dag the court below entered its formal order..
¥
December 18, appellant moyed for an order = ‘vaneing
- the date of the hearing of his itppeal. This Court granted
‘and heard the appeal January 9/Ap62. |
3 : *. : - ¥ tg -
This etise was tried below and argued here in the
eerie atmosphere of never-never land. Counsel for ap-
pellees argue that there is ne state policy of maintaining
' segregated institutions of higher learning and that the
court can take no judicial notice of this plain fagt Known
to eyeryone. The appellees’ chief ‘counsel insists, for
example, that appellant's counsel should have examined
the eqealogical records of al) the students and alumni
of the University and should have offered these ‘records
_ in evidence in order"to prove the University’s alleged |
policy of restricting admissions-te-white students.
We take judicial notice that the state of “Mississippi
imaintains a‘policy of segregation in its schools and eol-
leges.® Cf. United States v.-Harpole, 5 Cir., 1959, 263
F. “dg, cert. denied, 361 U.S. 890.
* Mississippi's strong policy in favor of segregation is reflected in
its statutes. Mississippi, in addition to enacting ‘a resolution of
ree oe ae enacted a statute requiring all members of the execu- ¢
tive nch of the state governn ent to prevent implementation of
Brown v. Board of Education and enforce segregation in the: public
schools and other public facilities “by any lawful, yg and
constitutional means” (Miss. Code, 1942, 4965.3 re is no
sta limiting admissions to the University of Mississippi_ but
M ippl State College is limited to white males (Miss. Code,
1 $6694); Alcorn icultural* and Mechanical College was
est@blished in 1878 for education of the colored youth (Miss. -
,
¢
C .
'- A20). "Meredith v. Fair: Et AL
Saget Colleges: broken down. on the basis o
¢
* The existence of this poliey is an important ‘factor in
defermining the purposes and effects of statutes and
actions superficially inngcuous. * The existence of the
policy’ and its effect as a guiding foree, however, do not
relieve\the plaintiff -of the necessity of sfiowing in this
, case that dhe policy was applied to him/o produce dis-
. . . » 4 | . “ . 2
crimination .on-the ground of race. Janes Meredith, like
‘any applicant for admission to a-t versity, may be
denied-admisgion on! non-discrimigatorv. grounds.
sie ry. groun
:: eo ae
We hold that the University’s: requirement that each
candidate for admission furnish alumni certificates is *
denial of equal protection of* tlle laws, in its application *. ~~
to negro candidates. It is'a heavy burden on qualified
negro students, because of their race. It is no burden on
qualified white students.
9 . ri te Z
Code; 1942, $6703); Mississippi State College for Women is also
$mited to white students (Miss. Code, 1942, §§6711 and 6714); Jack-
| Son State College for Negro Teachers, now known as Jackson State
a is the institution of higher learning which a pellant now -
attends (Miss. Code, 1942, §§6808-01, 6809). The Board of Trustees
has statutory authority to provide graduate and professional . in-
'-.Struction for Negro youth outside the State “when such instruction
is-not ‘available for them. in the regularly supported institutions of
. higher learning” (Miss. Code, 1942, $6726.5). Moreover, in 1959.the
» State Rreretenty Commission of Mississippi issued a. report on the -
state’s Negro and white schools, teachers and colleges. . This report
states the following: o ik, :
“.“The 1958-1959 allocation of state appropriated funds for
the amount allo-
téd ‘per student, is as follows: . p
Alcorn A. & M. Collegé—(Negro)... $747.65
2. Mississippi Vocational—(Negro). = = ss—CSSSS*C«S 2509 .
3. University of Mississippi—(white) 675.69
4. Delta State College—twhite) mstmiisionntsamianmwabeeastcngeee
5. Miss. State College for Women—(white).... «4552.53 ©
6. Jackson State College—(Negro)... SSCA
7. ‘Mississippi State University—(white) slept 454.67
® ississippi Southern College—(white)....-- ==”... 387.10
4 Race Relations Law Reporter 467 (1959). There is a state con-
stitutional provision and several state statutes requiring segregation
in the public schools. E. g., Miss. Constitution, 1956, Art. 8, §207;
Miss. Code, 1942, $§6220.5, 6328-03. . :
-
a
*
Meredith ve Fair, Et Al. . AL
Fhe fact that there are no Negro an of the U ni-
versity of Mississippi, the manifest unlikelihood of there
_ being more than adh ndfull of alumni, if any, who would
recommend a negro for the Univ ersit¥,the traditional
social barriers making it unlikely, if not impossible, for —
a negro to approach alumni ‘with a request: for sueh a -
recommendation, the possibility of reprisals if alamni
should-récommend a Negro for admission, are barriers
only to qualified’ negro applicants. “It is-significant that
the University, of Mississippi adopted the requirement of
alumni certificates a few months after Brown v. Board
of Education was decided. ©
In Ludiey v. Board of Supervisors’ Louisiana State
: Univ ersity of E. D. La., 150 F. Supp. 900, aff’d 252 F.2d
| 372 (1958, cert.. denied, 358 U. 5,900 (1958), d somewhat 7
similar requirement: was invalidated. There, a statute
required for? admission to state univ ersities a certificate
of good moral character, addressed to the particular uni-
versity by the principal of the high school from which.
_. the applicant was graduated. Negro high schools were
furnished certificates addressed only to negro colleges.
This Court held that the purpose and éffect of the statute
was to discriminate against Negroes: More recently,
Hunt v. Arnold, N- D. Ga., 1959, 172 F.. Supp. 849 i
appealed); the court held ‘hat an alumni certificate re-
quirement of the University of Georgia, adopted i in 1953,
was unconstitutional. In. that case the court said: . {The
‘Court takes judicial notice of -the faet that it is not cus-
tomary for Negroes and whites to mix socially or to at-
tend the same public or priv ate, educational institutions in
the State of Georgia, and that by reason of this presently
existing social pattern, the opportunities for the average —
Negro to become personally acquainted with the average
en,
,.
A222 Meredith v. Fair, Et Al.
a
aK —s
: white person, and particularly with the alumni of a white
educational institution, are necessarily limited.'’
’ To the extent, therefore, that the University of Mis-
sjssippi relied on the requirement of alumni certificates.
and © recommendations, Meredith was discriminated
against in’ violation of the equal protection clause ‘of the’ © —
Fourteenth Amendment and: was unlaw fully deni€d ad-
‘mission to the 8 niversity.
| Ba te: ae
That holging does not dispose of the case. ‘The state
of the’record is such that it is impossible to determine
“whether there fwere valid, non-discriminatory grounds
for the University’s refusing Meredith’s admiss®n. Con-
sidering the state of the record and considering that the
trial’ on ‘the merits heretofore set for January 15, 1962,
‘ean be held at an early date; we feel that it would pay
mote the proper ‘disposition of the case if in declining
_ to reverse the denial of the preliminary: injunction we
made the following observations for the ‘guidance of -the
district judge’ presiding at the trial on the merits. —
‘A.. First, the. transcript and the deposition taken in
the presence of the trial judge show that the counsel for _
the defendants was allowed so much latitude while, at
the same time the counsel for the plaintiff was so severely
circumscribed i in the examination of witnesses, introduc-
tion of evidence, and argument that the record contains
a welter of irrelevancies and, at the same time, a con-
spicuous omission of evidence that should be helpful to
a proper determination of the case,
i. . za)
The limitation of evidence is that pertaining to
the summer session of. 1901 is clearly erroneous. It is
oo
4
M redith v. Fair, Et Al. es
. er =
> : ; ; : f:.
¢
3 erroneous since ‘the policy and practices of the U niversfty
in’ admissions were at issue. It is erroneous because.
Meredith made it plain that his application for admission.
Was ‘intended as a continuing application, to the regular
term as well as to the summer térm of the University.
r 5 |
(. In oral argument on appeal, counsel for both
parties called to the attention of ‘this Court that sinee .
the hearing below Jackson State Collegé has. been ap- ~
proyed by, the Southern Association of Colleges and
Secondary Schools. This facf has a material bearing’ on
the 1 issue,
~~ D. -It‘is: not slien from ‘the record: whether the Uni- |
versity gave any effect to Meredith’s credits from the if
Universities of Maryland, Kansas, and Washburn, and
the twelve acceptable credits from’ Jackson State Cgflege,
although a letter of the Registrar seems to accept forty-—
‘ eight. credits.
_E. ‘It is not clear: from’ \the’ record whether the Uni-
versity’s references to Jackson State College mean that
Meredith was rejected simply because he"had attended
that college or he was rejected because the University
could not-aecept al-of Jackson State Coltege’s credits.
_(Apparently,,. although this too is unclear, the University -
accepted twelve credits: Mer edith eenetios from J ackson
State. ecall eet Iag. ,
A full trial on the merits is-needed in order to clarify
the muddy record new before us. Within proper legal
bounds, the plaintiff should be afforded a fair, unfettered,
and unharassed opportunity. to prove his case. A man
should be able to find an education by taking the broad
highway. He should-not have to take by-roads through
the woods and follow winding ‘trails through sharp —
4
sulle
AM > ~~” Meredith v. Fair, Et Al.
e: thickets, in constant tension because of pitfalls and traps, —
‘and, after years of effort, perhaps attain the ——
of his goal when he i is past caring: ahout it.
deabadieay, the order of the district ‘cout deiartan
appellant’s motion for a preliminary injunction is AF-_
FIRMED. The motion of the appellant that this Court
order the district court to enter a preliminary injunction
in time to sécure the appellant’s admission to the Feb-
ruary 6 term is DENIED. It is ‘suggested that the dis-
trict judge proceed promptly with a full trial on the "
merits and that judgment be rendered promptly, espec- . -
ially in view of the fact that a new term of the University
of Mississippi begins February 6, 1962. The sane s
mandate will be issued forthwith.
&o
‘IN THE UNITED STATES.
_ DISTRICT COURT
FOR THE JACKSON DIVISION Of THE
SOUTHERN DISTRICT OF MISSISSIPPI
/
No. 3130
JAMES HOWARD MEREDITH i
v8.”
iar a easel DICKSON PAIR: ET AL
OPINION OF THE COURT.
FINDING OF FACT-AND CONCLUSIONS -
OF LAW .
‘Plaintiff, James Hewase Meredith, is a member of the |
Negro race and a citizen of Mississippi. He filed this
suit against the members of the. Board of Trustees of
State Institutions, the Chancellar of the University of ° .
Mississippi, the Dean of tle College of Liberal Arts, and
the Registrar of the University. He alleged that he
sought admission to the University of Mississippi as a .
resident, under-grgguate, transfer student to that Insti-
tution and that he“was denied admission solely because
of his race. The complaint was answered by the Defend-
ants, denying that he was refused admission solely be-
cause of his race. A motion for preliminary injunction
was filed and a full and complete hearing upon the mo-
tion for the preliminary injunction to enjoin the Defend-
ants from refusing to admit him was had by the Court
and on December 12, 1961 his motion for preliminary in-
ie" 2"
A26 ; Meredith v. Fair, Et Al. “. y
junction was denied and the Court set the case for final
hearing on January 15, 1962." After fully hearing all the
evidence and considering the recor® on the motion fora —
preliminary injunction the Court held that the Plaintiff
was not denied admission because of his race. The Plain-
tiff filed his notice of appeal from ‘that judgment ,on
December 14, 1961 to the Court of Appeals for the Fifth
Circuit, which appeal was heard on Janhary 9, 19@2 and
_ the opimion rendered by the Court of Appeals on January —
12, 1962, ‘affirming the judgment of the District Court,
and the Court af Appeals denied the motion of the Plain.
tiff to ogder the District Court to enter a preliminary
. injunction in time to secure the Plaintiff’s admission ‘to
the February 6'term of the University.
The.statement of the pleadings and the background é of
the facts leading up to the filing of the suit are contained
in the opinion of the District Court which was filed on
: December 12, 1961 and which is reported in ~~.
Federal Supplement - = _ (not yet reported). The
opinion of the Court of Appeals i is not yet reported, but
- *
will appear in the Advance Sheets of the Federal Re-
porter in the near future. The style of the case in the
Court of Appeals is ‘James H. Meredith, on behalf of .
himself and others similarly situated versus Charles
Dickson Fair, President of the Board of, Trustees of the
State Institutions of Higher Learning, et al.’’
The only question now posed for decision is whether
or not the Plaintiff was denied admission to the Uni-
ona
versity of Mississippi solely because of his race or color. |
~—and only-a-question of fact appears for determination.
After the Mandate came. down from the Court of “Ap,
peals a hearing of the controversy was begun in the.
Meredith v. Fair, Et Al. - A27
,
District ( ‘ourt on the final merits on the 17th 6f January
and was concluded on the 27th of January, and after oral”
argument was submitted to the Court for deeision, Dur-
ing this hearing many additional witnesses testified,
principally the parties to the suit, and in addition thereto — -
all the testimony that was given on the hearing for the
preliminary injunction .was introduced into evidence
along with all of the. exhibits,. and several questions -.
law re elativ e to awe were ran ed.
the Plaintiff sheined a subpoena duces tecum ad-
* dressed to the Registrar of the University to Bring with .
him certain records pertaining’ to the ‘admission and
denial of all the transfer students fromthe summer term
to the date of the trial. The Defendants moved to quash ©
the subpoena duces tecum, which was overruled, and the
Plaintiff moved for an inspection of the documents to be
produced under the subpoena duces tecum before placing
the Registrar on the witness stand. The Defendants ob-
jected to this procedure on the ground that the only way
Plaintiff could obtain inspection of. the documents was_
__by_ motion under Rule 34; showing "good cause for the
inspection and production, The’ Court overruled this’
~ objection and stated that in this particular instance it
was permissible to look through the shell of the subpoena
to bring with him the documents and go to the substance .
and that rather than delay the trial to permit.a motion
_ under Rule 34, the Court would require the Registrar to —
bring the applications and all correspondence pertaining —
__thereto-with-reference to all students from the summer |
school up to the date of the trial, and would permit the’
Plaintiff-to_inspeet_those-documents without making a
‘ motion under Rule 34, for the reason that it was apparent
_ that there was sufficient good cause appearing that the
/
co
_— ~~ gag
Meredith v. Fair, Et Al.
Plaintiff would be entitled to inspect the. documents with .
reference to transfer students situated as was the Plain-
tiff. Rule bt of the Federal Rules of Civil Procedure, of
course, sequires that when one is in possession of docu-
ments that are material to the issues in a lawsuit, he may.
be required to produce them on motion and on showing of
good cause, but in this particular casé it was proper and
_ not error for the Court to rule as it did. Plaintiff alleges
and contends that he was dénied admission solely be-
cause.of his race. Defendants categorically deny that he
was denied admission because of his race and aver that
his race had no bearing at all on the rejection of his
applitation for admission. ,
As held on the hearing on motion for preliminary in-
junction, the evidence overwhelmingly showed that the
. Plaintiff was not denied admission because of his race.
_The Plaintiff, during this hearing on the merits, called.
; as adv erse witnesses nearly every meniber of the Board
of Trustees, who testified unequivocally and definite
' that af no time had the question of the race of a party
_ever been discussed at a meeting of the Board of Trustees:
or at any other place and that so far as the members of
the Board. of Trustees was concerned, all policies and -
regulations were adopted and followed without regard
to race, creed or color, and that at no time was the appli-
cation of James Meredith, the Plaintiff, ever discussed
by any’ members of the Board of Trustees. The* Regis-
trar, who also had testified on the motion for preliminary —
injunction, again testified to the effect that the question
of the race of the Plaintiff was not discussed or consid-
ered in. any way whatsoever wher his application for
admission to the University was being considered. All .
of the other officials of thie University testified to sub-
*
Meredith v. Fair, Et AL. ” Aa9
\ : © ; i oe
‘stantially the same thihg. One member of the Board of
Tyustees was not used, in addition to a few members who
were not called because of ill health.
The effeet of this additional testimony heard deciaias me
the trial-on the finakmerits strengthens the former find- .
inig of the Court that the Plaintiff was not denied admis- .
sien because of his tace, rather than weakens it.
- The proof shows on this trial; apd 1 find-as-w fact, —
that there is no custom or policy now, nor was there any
at the time Plaintiff’s application was rejected, which
excluded. qualified Negroes from entering the’ Univer-~
sity..Thé proof shows, and I find as a fact, that the ;
_ University is not.a-racially: segregated. institution. Prior
to the decision in the case of Brown, et al v: Board of
° Education of Topeka, et al, 347 U.S. 483, there.was such
+a custom which was fequired by the statutes of the State
of Mississippi and the Court takes judicial notice of that”
custom as-outlined by the statutes prior to-the trial of |
- the Brown case. Thi’ custom or. doctrine had been apy
proved by the doctrine .of the Supreme Court of
United States in the case of Plessy v. Ferguson, 163 V.
537. Prior to the Brown decision this was.a legiti
and lawful custom and it woth the provissge of the
' Legislature to pass those Acts. The proof inthe instant
case-on this hearing fails to show that-the Application of .
any Negro or Chitfaman or anyone ef any other race has
been: rejected because of his race or/color. Under. the
- proof in this casg judicial notice, while cansidered, and
' properly: so, is not enough to meet the burden of ‘proof
_ east upon Plaintiff to show. t e was denied admission
because of his race. Judici notice of facts is not con-
clusive on factual.matters/but is considered along with
all the other evidence inthe case. Shopleigh v. Mier, 299
- ?
o
es *
A30 ./ Meredith v. Fair, Et Al
4
a
U. S. 468; Words & ,Phrases, Permanent Edition, Vol.
23, p. 294, and-the 1961 pocket part. :
ipa _!-—The Court takes’ judicial mptice of Sec. 4065.3 of the
> a
>
Mississippi Code of 1942 as amended. This was passed
in 1956 and the Aet requires the officers to use any law-
ful, peaceable or constitution&l- ‘means -to prevent the .
implementation of or the compliance with the integration _
decisions of the Supreme Court of the United States.
The Legislatare in passing that Act had in mind to use
every legitimate, means to prevail upon the Supreme
Court of:the United Sfates to return to the doctrine of
Plessy v. Ferguson, but nowhere are any of the officers
_required ‘to disobey the decisions of the Supreme Court .
of the United States. There is nothing in the Act that
obligates or casts a burden upon any official to disobey
or disregard the decisions of the Supreme Court of the
. United States or to use any unlawful methods tg prevent
compliance. All the proof in this case, considered in the —
light of the opinion of the Court of Appeals affirming
. the judgment of this Court and denying ,the preliminary -
injunction, but holding that it was improper to consider
+ the failure to furnish certificates from the alumni of the
- Uniyersity, demonstrates clearly that Plaintiff was
not denied admission because of histace. I have weighed’
the testimony carefully in the light of the decision of the ©
Court of Appeals and have rejected, in weighing it, the
evidence to the effect that he had failed to furnish cer-
tifieates of the alumni, and have taken judicial notice
of the statutes affecting the custom of. segregation, and
am of the opinion, and find as a fact, that he was not
denied admission because of his race. It is rather diffi-
“eult to determine the weight to be given to judicial notice
of facts as Gifferentiated from judicial notice of laws,
Meredith v. Fair, Et Al. SONG
but giving full consideration to the judicial notice that the
policy prior to the decision in the. Brown case was to
segregate the races, and considering that policy along
, with all the evidence i in this case as of 196] and 1962, I
* conclude that the evidence | is insufficient to hold that -
that policy is now in effect. | 3 ; :
The burden of proof was upon. the Plaintiff to prove —
by a preponderance of the evidence that there was‘a a
. policy. at the time of his: sy f denying entry to
i
the’ University of Mississippi beeawse of race, and to
prov e by a preponderaiice of the evidence that such poi.’y —
was applied to the Plaintiff,gén order to produce diserim-
ination. The plaintiff failed entirely to meet that-burden, .~
‘but on the contrary the €vidence shows rather conclus-
ively that he was not denied admission because of his
race. In the trial on the merits every witnéss called by.
the Plaintiff testified that the race of the Plaintiff was © -
- not disenssed or considered at all i in passing on his appli-
cation for admission. Egch member of the Board’ of _
Trustees. who was called testified that the question of 7
race was not at any time discussed with any. ‘other mem-
ber of the Board of Trustees concerning the admission
of applicants to the University of Mississippi. It is a -
well aecepted rule of law that sworn positive testimony,
unless so unreasonable as to be unbelievable, or unless
denied by sworn testimony, is to be accepted as true.”
Since all of the evidence and -all of the exhibits that — =
were introduced into evidence on the trial of the motion
‘for preliminary injunction is now. before this Court upen —
this trial on the merits, I adopt the finding of fact that
was made in my opinion of December 12, 1961 .as my ~
finding of fact herein, and in addition thereto I find as
a fact from all of the ee evidence that was of-—
*
Ed
A32 Meredith v. Fair, Et Al. ~y
~ fered on ‘this trial, when considered-with alk of the evi-
dence offered on’ the former trial that the Plaintiff was’
_not denied admission because. of /his: race and that the
- evidence taken ‘in its entirety shows clearly that there -
was no denial of admission because of his: race or color.
In adopting the fitting of fact which | made in my. opin-
' . ion of December 12, 1961, I am making the same finding
- . after having distegarded those features of it that were
eliminated by the Court of Appeals in its. decision af-—
firming my judgment.
‘The Registrar, on cross examination by attorney for
Plaintiff, testified. that if. the application filed by the
. Plaintiff for admission were considered as still a pending |
‘” application for admission that he would not accept. the.
. application of the Plaintiff, but that his rejection of the
application for: admission would be based ‘not. in the °
slightest on his -race, but that the same rule would be
applied if the applicant had been a White person; that.
the race of the Plaintiff did not enter into his judgment.
The Registrar gave as his reason for this: statement that .
credible evidence had been furnished to him since: Plain-
- tiff’s applications had been presented and rejected that —
. Plaintiff was a rather unstable person; was ‘depressed
’ Ght times and of a highly nervous temperament; that the
Plaintiff had sworn falsely before the Circuit Clerk of
Hinds County in making application to register as a _
_ Voter, swearing that he was a citizen of Hinds County
‘when, as a matter of fact he knew he was a ‘citizen of
Attala County, Mississippi and that through this false
affidavit Plaintiff had procured himseJf to be registered
as a voter by tlie Circuit Clerk of Hinds County, Mis-.
sissippi; that Plaintiff had filed’ five. certificates by,
citizens of Attala County, vo that he-was of good
in his rejection of Plaintiff*s application for reasgns
‘the Board of Trustees of State Institutions of Higher
4 . 3% 2 P
‘ |. eee |
moral character and recommending him for admission
to the University, but that subseijuent investigation
showed that in procuring these certifi icates Plaintiff made
false representations to the signers,as-to the purpose for.
which he intended to’ Dse_ ‘them, stating to-two of the
signers in. substance that he was wiffiout a job and needed
these statements to help him get a job.
Meredith v. Fair; Et Al. >. A383
‘Seuss ‘of. this evidence was ‘objected to, but was te mta- ,
tively received in evidence.. Since the mais question be-
fore me is whether the Registrar, an administrative of fi-
cer of the State of Mississippi, had acted in good faith
other than race and since these facts were not shown to
the Registrar at the time t the application was rejected,
I hav e voneluded that this testimony. should nof be con-
sidered and have. not en it in reachiyf Ke! con-
clusions,
There is one other question of law’ which/ was raiséd
prior to the begipping of the trial-on the merits that
should be commented upon. .A motion was filed by the |
Defendants for the organization of: a three-judge vourt
to pass upon the eonstitutionality of the requirement of
Learning that every application Por admission to any
staté institution must be accompanied by recommenda-
_ “tions of five alumni. I did not pass upon this question in’
considering the application for a temporary injunetion
_ because of the universal rule that constitutional questions
; will not be considered if a decision can be reached on -
non-constititional questions. In, that decision I denied.
the application for temporary injunction solely on the
finding of fact that, Plaintiff’s application had not been
rejected because of his race. ‘
. °
*
AME” = Meredith v., Fair, Et Al.
“<
Under the laws of Mississippi this Board of Trustees *
is a constitutional body and its duties are fixed by Ar-
tivles V, et seq, Title 24, Vol. 5, Recompiled, of the Mis-
“ sissippi Code, ‘being | set forth in ‘Section 6724 and the -
following sections. of that. chapter. The Registrar in
{ acting on Plaintiff’s application was engaged in the en-
- forecement of an order made by an administrative Board
acting under the statutes of Mississippi, ‘but I overruled
* | the motion,. declining to request that a three-judge court
_be convened becausé the Court of Appeals had, in its
“ opinion, declared these require inents of Mississippi law
, unconstitutional.
Inasmuch as ‘Plaintiff has failed to meet the burden ~
by showing by a preponderance of the evidence that he
was denied admission to the University of Mississippi
ba solely because of his race, the complaint must be dis-
niissed. The Plaintiff undertook to bring the action as a-
class, acting under Rule 2 3(a) (3) ‘of the Federal Rules
of Civil Procedure, but since Plaintiff failed to:maintain
this action in his own behalf, he cannot. maintain it ¢ as a-
Class Action.
"This the 3rd day of February, 1 1962.
"Ae B.C. MIZE = -
UNITED STATES DISTRICT JUDGE
"IN THE UNITED STATES
“COURT OF APPEALS
FOR THE FIFTH CIRCUIT
s
No. 19475 —
JAMES H. MEREDITH, on behalf of
- himself and otherssimilarly situated Appellant
es ‘versus. : aie ene .
_CTLARLES DICKSON FAIR, President of
. ‘the Board of Trustees of the State-Institutions
“*
of Higher Learning, Nt-AL._ ae Appellees’
Appeal from the United States District Court for the
aa Southern District of Mississippi. .
ON MOTION FOR INJUNCTION PENDING | |
' APPEAL. —
(February 12th, 1962) _
*.
Before. TUTTLE, Chief Judge, RIVES and WISDOM,
| Cireuit Judges.
PER CURIAM: Pursuant to.the provisions of Title 28
U.S. Code, See. 1651" and Rule 62 (g), F. RC. P.,” the
1 Writs—(a) The Supreme Court and all courts established by Act
of Congress may issue all writs necessary Or pe in aid
| of their respective jurisdictions and agreeable tv the usages and
principies of law. , i
“(b) An alternative@rit or rule nisi may be issued by a
justice or judge of a court which has juris iction.. June 25,
1948, c. 646, 62 Stat. 944, amended May 24, 1949, c. 139, $90,
63 Stat. 102.” NE ; .
2 “Rule 62 (g) Power of Appellate Court Not Limited. The -provi-
- sions of this rule do not limit any power of an ss canbe court
or of a judge or justice thereof to stay proceedings during
the pendency of an appeal or to suspend,. modify, restore, or
\° grant an injunction during the pendency of an appeal or to
\make any order appropriate to preserve the status quo or the
effectiveness of the judgment subsequently to be entered. As —
- amended Dec. 29, 1948, eff. Oct. 20, 1949.”
®,
a
: A836 -Meredith-v. Fair, Et AU
appellant moves the Court for an injunction iiiine the
pendency of this appeal, enjoining the appellees from.
refusing to admit appellant to the’ Liberal Arts College of
the Univ ersity of Mississippi for the semester which com-
-menced February 6, 1962, and as to which admissions can -
be received no later than February 15, 1962, on the ground |
that snch injunction is necessary in aid of. this Court’s
jurisdiction of this appeal which, according to appellant,
would otherwise | be uefeated through mootness of this
" appeal.
The district court’s judgment was entered on February
5, 1962, and the testimony taken before the district court
is not yet available to this Court: Hearing on the motion
for injunction pending appeal was had before this Court
on Saturday, February 10, 1962.
The ground upon which _ claims that this ap-
peal will become moot before it can be heard and decided
in normal course is that, prior to, stich time, the appellant
will graduate from Jackson State College, and willthen
lose any right to be admitted to the Liberal Arts College
of the University of Mississippi. The appellees point
out that it is within the appellant’ s power.to avoid that
result. by his non-attendance on Jackson State. College
for one quarter of a school year.* The appellees -insist,
and assure this Court, that such non- -attendance would
not prejudice: the appeHant’s claim to a right to- be ad-
~ mitted to the Liberal Arts ge of the University of |
Mississippi. J 2
-' While we appreciate the ceca which Sueh_non-
attendance may impose on the appellant, when that hard~
3 It seerns to us, also, that the appeal would fot be mooted if ap-
= did not in fact graduate from Jackson State College
ause of being permitted to choose subjects of study other
than those — to his graduation. . ;
o_—-
Meredith v. Fair, Et Al. - — A837
-.ship is balanced against other possible irreparable dam-
ages which might be suffered by the appellant himself.
and by the ‘appellees from the issuance of the mandatory
injunction prayed in the event that the judgment of the
district court should ultimately be affirmed, such hard-
ship is not sufficient to permit us to issue the mandatory
injunetion prayed without an opportunity to study the
| full. record-and testimony on the hearing before the dis-
‘strict court. At this time we express no views on the .-
merits of this appeal. > |
; By expediting the hearing of this appeal, it can be de-
cided on its merits before the beginning of the next col;
-lege‘term. The Clerk of this Court and the parties are
- therefore directed to take all necessary and proper steps
to expedite the hearing of this appeal on its merits, and
the motion for injunction pending*appeal is’ denied. The
Clerk ig direeted to issue the mandate forthwith.
~- TUTTLE, Chief Fudge, I respectfully dissent.
‘1 think the record already submitted, without the bene-
: . . ° 2 -
fit of the record in the trial on-the merits, calls for our
granting the injunction pending appeal. ,
Undisputed ‘acts, of which we .have already.taken
cognizance when this case was here on appeal from denial
of an interlocutory injunction show that ‘the appellant.
was denied adinission on the stated grounds:, (1) that |
he had failed to furnish Secommendations f rom.six alumni
of the University ; (2) that the University policy (adopted
after Meredith originally applied for transfer) preventéd *
a’ transfer from an unaccredited institution (Jackson
State College was at that time unaccredited) ; (3) the
letter then stated: ‘‘T see no need for mentioning any
other deficiencies.’’
e
A38' - . — Meredith'v. Fair, Et Al.
“In view of our holding in the earlier opinion that ‘*We
_take judicial notice that thé state of Mississippi main-
tains a policy of segregation in its schools and colleges,’’
and our holding that ‘the requirement of alumni recom-
mendations was unconstitutional as to Negro applicants
and in viéw of the failure of the defendants to assign any’
other reason for rejecting appellant’s application for
transfer, I am convinced that there is sufficient likelihood
that this Court will reverse the trial court’s findings that
Meredith was not denied admission on racial grounds
tigt I would grant the injunction pending appeal.
Jackson State College is now fully accredited, and
there is thus now no bar to appellant’s transfer on that
ground. Nor is there any- evidence, even on the trial on
the “merits, that Meredith. would necessarily lose any
credits which he has already earned at Je@Kson. State
College. . _
e
If Meredith continues as a student at Jackson State
College, which he must do in order to continue to be en-
titled to his G. I. educational benefits for himself and his ©
family, he will graduate.in J une of this year and he can-
not thereafter enter the-University of: Mississippi as a.
candidate fora bachelor’s degree. I do not believe that
he should be required to leave college at the beginning of
his final term to prevent his appeal from becoming moot.
‘Unless he is admitted to the University by F ebruary 15,
just three days hence, He cannot transfer until the next
term., Therefore, if he is denied the injunction and does
_ not quit school. fora term (to keep from graduating) he
_ will be forever denied the right-to enter hig state uni-
versity as a candidate for an undergraduate degree,
- which right I think this Court may well ultimately decide °
“he is entitled to.
Meredith v. Fair; Et Al. A39.
I do not think this Court ought to oneefn itself with
any possible damage’ to the appellant’ by granting his
motion for injunction. He does not need for us to help
him decide whether he really wants what he is here fight-
ing so hard to get. :
I therefore respectful issent.
eae
——
a _-"""
= .
.
‘
.
ke .
«
.
4 ‘
7 :
IN THE UNITED STATES
COURT OF APPEALS
‘FOR THE FIFTH CIRCUIT
No. 19475
JAMES H. MEREDIT H, on behalf of himself
and others similarly situated ; | Pome Sant:
Vs. ; Tg
,
CHARLES DIC KSON, FAIR, President of
the Board of Trustee sof the State [ustitutions
of Higher Learning, etal. aes * Ap pelle es
: : <ee nina Ricken <4 ne
° . \ 8 2 :
ORDER, -=""— er ee
_—<¥
"This Court Seti cofisidered the motion by The appel-
lant for the issuance of an injunction in aid ofAhis Court's
jurisdiction upon the instayt appeal; =“
And it appearing from said motion thi a criminal pro-
ceeding has been éomnienced in the’ Justice of the Peace
Court fot Hinds County, Mississippi, Justice District
No. 5, on the general affidavit of Paul G. Alexander,
Attorney for Uinds County, sworn te and subseribed
before Homer Edgeworth, a Justice of the Peace for
Hinds County, on the 28th day of May 162;
And it appearing from the repre sentations of appel-
lant’s counsel .to this Court that a warrant was duly
issued upon said affiday it for the arrest of the appellant
and that the appellant. was in fact arrested on the 6th day
of June 1962 ;
And it appearing that the iat warrant is returnable
before said Justice of the Peace on the 13th nik of June
1962;
°.
4
Aa? | Meredith v. Fair, Et Al.
. . °
- And-it further appearing that there is insufficient
. time to give notice of the filing of appellant’s motion
and to have a hearing thereon before the return day ;’
And it further appearing — appellant’s motion
‘that the affidavit of Paul G. Alexandr alleges that the
appellant knowingly procured his registration as a qual-
- ified elector of Hinds County, Mississippi, when she did
not in fact reside in Hinds County, Mississippi, but was
a resident of Attala County, Mississippi, in violation of
‘ Section ¢ 3218 of the a ¢ ‘ode, 1942, Annotated;
And it ‘further appearing that the question whether.
appellant knowingly: secured his registration as a quaili-
‘fied elector of Hinds ¢ ‘ounty wheg he did not.@n facet
reside in Hinds County buf was a residnet of Attala
County is one of the questions tobe decided by this Court
‘upon the instant appeal ;
And it fuitther appearing that the issuance of an in-
junction is necessary in aid of this Court's appellate —
jurisdiction, it is:
"Ordered, Adjudged and Deereed- that Paul G. Alex-
ander, his agents, employees, successors and all persons
in active concert and participation with him and all per-
_ sons who shall receive notice of the issuance of this order
*be, and they, hereby are, restrained and enjoined from
proceeding. with the criminat action instituted - against
this appellant by the affidavit of Paul G. Alexander in
the Justice of the Peace Court of Hinds County, Justice
District No. 5, or any other court of the State of Mis-
' sissippi, charging that appellant knowingly secured his
. registration as a voter in Hinds County when he did not |
in fact reside in 1 Hinds County but was a. resident of
“ete
Meredith v. Fair, Et Al.
,
A43-
Attala.County, pending this Court’s final determination.
of the instant appeal, brought by the appellant herein.
It is further ORDERED, that a copy of this order and |
appellant’s motion be served upon Paul G. Ajexander,
County Attorney for Hinds County, and Joseph T. Pat-
terson, Attorney General of the State of Mississippi.
Entered, at New Orleans, Louisiana, this 12th day of
J une, 1962. 2 ‘
JOHN R. BROWN
United ‘States Cireuit Judge
JOHN MINOR WISDOM
United, Stafes Cireuit Jud >.
- DOZIER A. DE VANE
United States District Judge
/ : : °
‘IN THE ‘UNITED STATES -
COURT OF APPEAIS .
FOR THE FIFTH CIRCUIT
- bs No. 19475
JAMES H. “MEREDITH, on behalf of himself
and others similarly situated =e Appellant
—_<vers °°» ©
CHARLES DICKSON FAIR, President of the
Board of Trustees of the State Institutions
of Higher Seo EA AL. ...., Appellees . ¢
Appeal f rom the United States District Court for the.
—e District of Mississippi.
‘Lee
Before BROWN and WISDOM, Circuit Indges, and
DeVANK, District Judge. °
(June 25, 1962)
WISDOM, Cireuit Judge: The Meredith matter is be-
fore us again. This time’the appeal is from a fina) judg-
ment after a trial on the merits: The judgment denies —
James A. Meredith, a Mississippi negro in search of an’
education, an injunction to secure his admission to the». 6
University of Mississippi. We reverse with directions .
that the injunction issue., | , . ,
A full rev iew of the record leads. the Court incacapabiy
to the conclusion that from the moment the defendants |
_ discovered Meredith was a Negro they engaged in a care-
ia ully calculated campaign of delay, harassment, and.mas-
~ ‘
A46 _ Meredith v. Fair, Bt Al
terly inactiv ity. It was a defense designed to Bnteateds
"and to defeat by evasive tacties which would have been
a credit to Quintus Fabius Maximus.
After the trial on the merits, the district judge found
as a fact, that, the University ‘is not a racially segre-
_ gated institution.’’ He found that the state has no policy —
of segregation. He did find that segregation was the
custom before Brown v. Board of Education was decided © -
in May 1954.’ But, he held, *‘therv-is no ¢ustom or policy
now, nor was there any at the time of the plaintiff” s
‘application, which excluded Negroes from entering the —
University.’’ This about-face in policy, news of which
may startle ‘some people in Mississippi,. could have been
accomplished only by telepathic communication’ among
‘the University’s administrators, the Board of Trustees of
State, Institutions of Higher Learnjng. As the trial judge
_ pointed out in-his opinion, ‘‘nearly every ‘member of the
Board of Trystees, testified unequivocally and definitely ”
that at no time had-the question of race of a party ever
heen diseussed at a meeting of the Board of Trustees-or
at any-other place and that so far as the Board of Trust-
ees was Bee all polici ies and regulations were
adapted and followed without regard | to Ort, creed or
color,’ . ’
-
.
In our prev ious opinion in.this case, 298 F, 2d 696, on
. the appeal from a denial of the prelimthnary injunction,
it seemed | to us that what®everybody knows the court
must know.’* We took ‘‘ judicial notice that the state of
Mississippi maintains a policy of iSalaanel ‘in its
o
2.
1 Justice Harlan in Jacobson y. Massachusetts, 1905, 197 U. s, 11, ie
25 S. Ct. 386, 49 L. Ed. 643.
5 ¢
. :
Meredith v. Fair, Etal. .-: AAT
a"
TT
* schools Fnd colleges.’” (We find nothing now) in thif
s
admission.*
‘ease reaching ‘the dignity of proof to make us think we
were wrong to take judicial notice of Mississippi's policy
of segregation.) Nevertheless, on that appeal, giving
the University the benefit of the doubt, it seemed to us
that a trial on the merits would be in the interest of
oe te for reasons not attributable to the endeavors or
petency of counsel, it was impossible to determine
from the record whether there were valid, non-diserim-
inatory grounds for the University’s refitsing Meredith’s’ .
j
con
' The district judge foynd no reason in the trial on the.
merits to change his earlier findings of fact and conelu-,
sions of law. He held that the evidence.“ shows clearly
that there was no denial of admission because of his race
2 In our previous opinion, on the — from a judgmént denying a
preliminary injunction, we said: E
_ “This case was tried below and argued here in the |
eerie atmosphere of never-never land. Counsel for ap-
ees argue that thert is no state policy of main-
taining segregated institutions of higher learning and °
that the court can take ne a notice of this plain *
fact known to everyone. appellees’ ehief counse!
insists, for example, that appellant's counsel should
have examined the genealogical records of all the
- students and alumni of the University and should have
. offered these records in evidence in order to proye the
University’s alleged policy of restricting admissions to
white students. * We take judicial notice that the state
of Mississippi maintains a policy of segregation in its
schools and colleges. Cf. United States v. H poles 5
Cir., 1959, 263 F. 2d 71, cert. denied, 361 U. 50.”
See alsé footnote 7. ae eS !
3 We observed; ‘4
“(T)he transcript and the deposition taken in the pre-
sence of the trial judge show that the counsel for the
defendants was allowed so much latitude while at the
same time the counsel for the — was $0 se-
verely circumscribed in the examination of witnesses,
introduction. of evidence, and, argument thdt the re-
cord contains. a welter of irrelevancies and, at the ©
_. same. time,/.a conspicuous omission of evidence that ~
_ should be helpful to a proper determination of the
case.” : ’ 2 ‘
Ags” |. Meredith v. Fair, Et Al.
and color.’ In’ reaching this conclusion the trial judge
adopted the findings of fact in his earlier opinion on the
motion for a preliminary injunction. It is necessary
therefore to rev iew the case from the beginning. Such
_ whole-ease review has the advantage of enabling the
Court to consider the various contentions in context and
to determine whether the pieces fit. togethér to’ make a
pattern of unlawful discrimination. . a
I.
>
Ns “James H. Meredith was born in 1933 near Koseiusko,
in Attala € ‘ounty, one of the rural counties in Mississippi. .—
After ‘graduating from high school in 1950 he volunteered
for serv ice in the United States Air: Forees. When his
hitch was over. he reenlistgd. In the Air Forces he rose
_ to the rank of staff sergeant. “He was discharged in the
summer of 1960. He ras never in trouble- with ‘civilian
or military ‘authorities. Meredith ree eceived an. honorable -
discharge and the Good Cdnduct Medal.
7 oe
Meredith got his educatio he hard way. Some time int
"1953 he decided to:improve himself. He turned first to
.
2
‘*Fundamentals of Speech’’ and ‘‘Composition and Liter-
ature,’’ extension courses of the University of Kansas.
In 1954 he enrolled in a course in ‘Government’ of the
United States’? at Washburn University in Topeka. He
received the grade of ‘‘C’’ in each of these subjects.
Froin (1954 to 1960 he took advantage of college level —
courses of the United, States Armed. Forces Institute, for
which Jackson State College eredited him with 57 quarter
hours credit. Meredith’s most fruitfyl years, education-
ally, were the two years he spent in Japan just before ~
4 Jackson State uses the quarter hour, system for credits. Three
quarter hours are roughly equivalent to two semester hours.
*.
.
Meredith v.Fair,Et Al. ~—‘A49
leaving > the service. Hiss attended the Far East Division
of the. University of Maryland. He tackled difficult
courses, such as ‘‘Russian,’? and he carried a heavy |
sehedule.: In 1958-1959 he had :5 ‘*B’s’’; in 1959-1960 he
had 3 ‘*B’s’”’, 3 “A’s’’, and 1 “F’’. The U hiversity of ©
_ Maryland eredited him with thirty- four semester hours.
for twelve courses. |” |
Promptly ‘ties returning kine, Meredith registered
at Jackson State College, a “Negro’’ college in Hinds
County, Mississippi. He moved to Jackson with his wife
and child. At Jackson Staté\his grades were almost all
“A’s” and “B’s’’. In Jatuars-1961 he applied for ad-
mission-to the” Tniversity ‘of Mississippi. When asked on
the’ witness stand why he wished-to transfer, he s said
Jackson State was ‘‘sub-standard.”’? — im
i oes
‘These facts raise 'a doubt as to the defendants’ geod -
_ faith in asserting that Meredith was nét in good faith in
_ applying for admission to the’ University of Mississippi.
‘Phat Meredith’s transfer we mean the loss of credits
and possibly the loss of some G. I. benefits, that he was
in his 'ate twenties, that he might find the University of
Mississippi ‘considerably more diffieult than Jackson ‘
State College, demonstrate his perseverance and fit in
with the character of a man who is having a hard time
getting a college education but is willing to pay the price
exacted of a Negro for sdmission to the University of
ene:
IL. AE gen
“The defendants’ Fabian policy of planned discourage-
ment and discrimination by delay is evident from the
correspondence between Meredith and the University.
ss
A50 Meredith v. Fair, Et Al. :
Some tinie in J anuary 1961 Meredith wrote the Regis-
‘trar for application forms: He received a prompt reply
thanking him for his interest and enclosing: the forms.
January 31 he wrote the Registrar, enclosing the exe-
cuted forts. In this letter Meredith expressly informed
the University that he was.a Negro. This was not a
gesture of defiatice—the forms require a‘ photograph
and an indication of. race—but a predicate for pointing
out that although he could not furnish: the names of
alumni who reside in his county and have known him for
at least two years he was submitting certificates regard- -
ing his moral’ character from Negro citizens who had
known him in the county of his birthplace. As is apparent. _
from thie letter,> Meredith was,‘‘hopeful that the eom-
5 The letter reads: Ae ae fs .
_ “Dear Mr. Robert B. Ellis: toe Ea .
. I am very pleased with your letter that accompanied
the application forms you recently sent to me. I sin-
cerely hope that your. attitude toward me as a po-
tential member of your student body reflects the atti-
tude of the school, and that it will not change upon
7
learning that I am not a White applicant. >
I am an American-Mississippi-Negro citizen. With all
of the occurring events regarding changes in our old
educational system taking place in our country in, this
new age, 1 feel certain that- this application does not
come as a surprise to you. I inly hope that this. .
matter will be handled in a manner that will be com-.
plimentary to the University and to the State of Mis-
/ sissippi. Of course, I am the one that will, no doubt,
a suffer the greatest consequences of this event, there-
fore, I am very hopéful that the complications will be.
as few as possible. Bp ;
‘I will not be able to furnish you with the names of six
University Alumni because I am a Negro and all grad-
uates of the school are White. Further, I do not know
any graduate personally. However, asa substitute for |
this requirement, I am submitting .certificates regard-
ing my moral character from Negro citizens of my
tate. , Ke
Except for the requirement, mentioned above, my ap-
—— is complete, All célleges previously attended.
ve been contacted and my transcripts should already
be in your offfce or on the way. I am requesting that
immediate action be taken on my application and that I
‘be notified of its status, as registration begins on
<
Meredith v. Fair, Et A. Abl
plications [would] betas few as possible.’’ We read this
letter as showing no chip on the shoulder and no evidence
of such abnormal concern-as to support the defendants’
contentior that from the start Meredith's letters indicate
he was “belligerent,” a ‘‘trouble-maker,’’ and had psy-
chological problems. We think it not unreasonable fora
Negro to have some concern over his reception on the
““Ole Miss’? campus. ae |
February 4, 1961, two days before registration began
for the second semester, the Registrar telegraphed Mere-
dith*. - oy : ie
‘Fors your information and guidance it has been
found. necessary to discontinue consideration of all -
applications for admission or ‘registration for the
second semester which were received after January
25, 1961. Your application was received subse-
quent to such date and thus we must advise you not.
to appear for registration.”’ — .
In his holding om the preliminary injunction, the trial .
* judge found as a fact that this first refusal of admissions
Was a proper refusal because ‘of ‘overcrowded condi-
tion.’ In February 1961, howéver, there were-only 2500
‘to 2600 male students on.the campus. As of September
‘time. * » .
Thank you very much.
~ Very hopefully yours,
/s/ J H Meredith
J H MERE TH ba
Applicant” ont
6 The Registrar sent telegrams to some thirteen or fourteen appli-
‘cants. He testified that probably as many as- 50 to 100 students
were not permitted to submit applications: The Registrar also’
_ testified that the cutoff was not a sudden decision but was the
culmination of a review toward establishing cutoff dates to
improve the quality’ of student personnel.
February 6th, 1961, and I am hoping to enroll at. this
A52 Meredith v. Fair, Et AL
1961, as the Director of Student Personnel testif ied, there
were about 3000 male students on the campus.
February 20 Meredith wrote ‘te Registrar requesting
_ that his application. be treated as a continuing appliga- °
tion for admission during the summer session. He called
attention to his transcripts having been forwarded from
the universities he attended. He concluded, “ Again, I
would like to express my gratitude for the respectable
and humane nianner in which you are handling this mat-
ter and I am very hopeful that this procedure will con-
tinue.’’ The next day his room deposit of ten dollars was -
returned.
_F ebruary 2: 23 Meredith returned the ten dollars, explain-
ing that he had requested his application be considered
for the summer session. After waiting a month for an.
- answer Meredith wrote the Registrar again. This time
-he requested that his application be considered as a con-
tinuing one for the summer session and for the fall ses-
sion. He inquired whether his transcripts had been re-
ceived and whether there were ‘‘any. further prerequisites
to admission.’ After waiting eight days for an answer,
‘and apparently. thoroughly alarmed by eloquent ‘silence
from the University, Meredith again wrote the Registrar.
It ts the letter of’ a man of persev erance, but a man of
patience and politeness. He asked the Registrar to please
let him have the U niversity’s evaluation of his credits ©
- acceptable to the University ‘‘if it [were] appropriate at
[that] time.’’ He enclosed five certificates certifying -
to his good moral character and recommending him for
admission to the University; the earlier letters wefe
‘silent on the subject of recommending him. He said that
he ‘‘realize[d] that [he was] not a usual applicant to thie :
Meredith v: Fair, Et Al.: ° .~ AS8
a
—,
U nivetsity of Mississippi, saa that some timely items
might need to be considered. ee
Another month went by. Still ‘no answer. April 12
Meredith wrote the Dean of the College of “Liberal Arts
at the University. In laconic style, barren of comment,
Meredith told of his application and his unanswered let-
-- ters. He concluded: :
“When I forwarded my application to Mr: Ellis
on January 31, 1961, 1 stated in a letter to iim and
in my sa geome that I am a Negro citizen of _—
M@sissippi. Beeause of my failure to hear-from Mr.
Ellis since his telegram to me of February 4, 1961,
I have concluded that Mr. Ellis has failed to act
upon my application solely because of my rhee and’
color, especially since I have attempted to comply
with all of the admission requirements and have
not been advised. of any deficiencies with respect to
same. § I am, therefore, requesting you to review
my case with the Registrar and advise me what ad-
mission requirements, if any, I have failed to meet,
- and to give me some assurance that my race ard
color. aye not. the basis ued my failure to gain ad-
mission to the Univ ersity.’ )
The Deaa did not reply to this a letter. Belatedly, May 9,
the Registrar replied, advising Meredith that ‘‘the maxi-
mum credit which could be allowed is forty-eight semester
hours [for the 90 hours submitted} if your application for
admission as a transfer student should. be approved.’’
The letter asked Meredith to ‘‘ please advise if you desire
your application to be treated as 4 pending appli¢ation.”
Meredith took this as a good omen. May 15 he wrote
that he wished to attend the first term of -the session
Adt = Meredith v. Fair, Et Al.
» ®
starting in June, and that it was imperative he be in-
formed with respect to his admission because he would’
have to make arrangements for his family. He enclosed
i letter to the Director of Men’s Housing, applying for
_ an apartment appropriate for his family size—a wife
’ and small child. Not having received an answer by May ©
21, Meredith wrote again:~tle said thaf since the Regis-
~ trar had asked if his application. should be considered /
as pending, he had **assumed by the nature of (the} re-
“quest that [his] application was entirely complete and
that [he had] met all of the pre- registration require-
ments. ’’
The axe fell May 25, 1961. ‘On that date the Registrar
closed his correspondence file on the application and
returned the money Meredith had ‘deposited. He gave .
the following reasons for returning admission:
“The University cannot recognize the transfer of
credits from the institution whieh you are now. at- |
tending since it is not.a member of the Southern /
. Association of Colleges and Secondary Schools. Our
policy permits the transfer of credits only from
member institutions of regional associations.: Fur- ©
thermore, students may nof be accepted. by | the
University from those institutions whose programs
are not recognized, q As 1 am. sure you realize,
your application does not meet other requirements
for admission. Your letters of recommendation are,
not sufficient for either a résident or a nonresident _
applicant. I see no need for mentioning any other
. deficiencies.’ :
We pause in narrating the facts te observe that ies ex-
planation i is inadequate on its face. (1) It ignores the
credits from Washburn, Kansas, and Maryland. (2) The ‘|
Meredith v. Fur, Et at. ADD
** programs ’”* from those institutions are of course “ recog-
_ hized-* by Mississippi. -As for Jackson State. its program
. Was established and is “supervised by the identical Board
-Of Trustees supervising the program at the U niversity
» of Mississippi. (3) The letters of recommendation refer.
to the requiteme nt of alumni. ce rlificates, a patently dis-
PwP nes eile tinea y
iro + TTD. OL a. ; 7
criminatory dev vice. ane Bt errr:
Up to this point the University had successfully avoid.
ed deeisive action on the 1961 Fall term. And, beeatise
-of the lateness of the hour, the University was jn a favor-
“able position to resist the expected assaults on the sum-
“mer sessions. :
Ill.
“May 31, 1961, Meredith filed : a. complaint in the United
States -District Court for the Southern Distriet-of Mis- -
sissippi.: The defendants were the Board of Trustees of
the State Institutions of Higher Learning, the Chaneellor
of the University of Mississippi, the Dean of the ‘ollege
of Liberal A rts, and the Registrar of thie U niversity. The
Governor of Mississippi appoints the oard with the con-
sent of the state senate. The Board, a const#utional body,
is vested with the management and control of all colleges
and universities, including. the Negro colleges..-
The complaint i is filed as a class action. It alleges that
the defendants are pursuing -a state policy, state prac-
lice, state custom, and state usage “of maintaining and
operating separate state institutions of higher learning
for the white and Negro. citizens of Mississippi; that
“under this policy Meredith was denied admission to the:
University solely beeause of race and eolor. At the first
hearing the plaintiff was denied } permission to introduce.
evidence relating to other colleges and universities. in
ASG Meredith v. Fair, Et Al.
Mississippi. (In view of the theory of the complaint. that
segregation was a state policy being carried out by: the
Board charged with administering all of the state’s in-
stitutions of higher learning, this. ruling was clearly
erroneous.) The evidence, therefore, relates only to the
University.
At the time the complaint was filed counsel for Mere-
_ dith sought a restraining order; the summer term was
’ about to begin. The trial judge denied the order.
. ; td e
The case was set for a hearing on the — mo-
tion for a preliminary injunction, June. 12, 1961. This
was four days after commencement. of the summer ses-
sion. About 3:30 p.ft on the afternoon of the hearing
_ the trial judge stopped the trial and continued the case
on the ground that because of his crowded docket he had
set aside only one day to hear the case. The case was
continued until July 10, 1961, at which time, according
to the court, the entire case would be heard sineg, in the
interim, the answer would be filed, the issues ‘‘definitely —
framed and we can begin the case and finish it.’’ In
‘practice, in almost all cases, a hearing on a. motion for
a preliminary injunction is heid before an answer is filed.
: Thy case was not heard on July 10 beeause of a sched-
uled three-judge court ease which required the presence
of the trial judge below and involved counsel for both
parties. -Meredith’ s counsel therefore’ filed, June 29,
another motion for a preliminary injunction, since the
second summer term,would commence July 17. The mo-
. tion was fixed for a hearing on July 11. *On July 10 the
chief counsel for the defendants, Assistant Attorney Gen-
eral Shands, was ill. His illness caused thie case to be
continued to August 10, 1961. By that time any possibil-
@— Meredith v. Fair, Et AL. A57
ity of attending the second summer session had ‘gone
winging. ae ae .
June 9 and 30, 1961, and again July 27, July 28; and
August 4, 1961 Meredith's counsel sought to fake the
Registrar's deposition. The efforts were singularly un, —
successful. The ‘trial’ judge denied the first motion on’
the. ground that the deposition could not be taken prior a
to the expiration of twenty days from the filing of the
complaint. See Fed. R. Civ. Proe. 26. The second notice
of taking was suspended and stayed by the coart én the
| ground of Mr. Shand’s poor health, June 27, two weeks
before ‘the July 10 postponement of the trial. August z.
the trial judge vacated the other three notices on the
ground that the court was ‘‘in the process of trial on
plaintiff’s motion for Temporary Injunction, and the
exercise of [the] court’s discretion.”’ This appears to
us to have been a clear abuse of pa discretion.
Counsel tor Meredith filed a motion that the Univer-
sity produce records ‘of all students admitted to the Feb-.
. ruary 1961 term, the 1961 summer terms, and the Septem-
ber 1961 term for inspection July 1 to July 7. The motion,
filéd June 20, was not heard until July 27, because of
~ Mr. Shands’ ill health and because. of the, crowded court
calendar. August 1 the dist rict court ordered the records
produced for inspection, but limited inspection of records |
to applications for undergraduate enrollment in the 1961
summer terms, and to the applications to the graduate
school4. This order was manifestly erroneous and’ was
one of the causes for the poor state of the record in the,
hearing for the preliminary injunction.
July 10 the trial judge announced that the ene on
August 10 would be a trial on the merits. August 1 this
”~
i Meredith v. Fair, Et Al. :
ruling was reversed; the trial judge ruled that the August
10 hearing would be a continuation of-the June 12 hear-
ing on the preliminary injunction.
July 19 the defendants filed their answer. ‘The answer
supplemented the Registrar’s letter of May 25 by giving '
a large numbér of additional reasons, many of them *
. trivial, for ‘the University’ s having refused Meredith
- admission. The answer emphasizes the following reasons.
(1). Meredith failed or refused to submit the requisite
- alumni certificates. (2) Meredith ‘*was not seeking ad-
-miséion. to the University of Mississippi ii good faith
_for the purpose of securing an egueation,’’ considering
all of the circumstances and particularly the faet that as —
a’ consequence of transferring to the University he would
lose credits and G.I. benefits. (3) Merdeith’s fear that .
his application might be denied because of his race
‘‘shocked, surprised and disappointed”’ the ._ Registrar.
It was so ‘‘rash”’ and ‘‘unjustified’’ that it raised grave
questions as to Meredith’s ‘‘ability to conduct himself
as a normal person and. a harmonious student on the
campus of the, University of Mississippi.”’ The Regis-
trar, for himself and the other defendants, all of whom
‘adopted his answer, denied that ‘‘he understands and
interprets the policy of the State of Mississippi as being
that negroes and whites are educated in separate insti-
tutions of higher learning.’”
*-
af
_1 Mississippi's strong policy in favor of segregation is reflected in its
statutes. Mississippi, in addition to enacting a resolution of in-
toxjponition,-onneted ¢ a statute requiring all members of the exe-
cutive branch of the state government to prevent implemen- —
. tation of Brown v. Board of Education and -segrega-
- tion in the public schools and other lic facili =
lawful, and constitutional means” (Miss.. Code,
§ 4065.3). There is no statute limiting admissions ‘ste Uei-
‘versity of Mississippi but peloctastont ate Co te College is limited to
); Aleorn Agricultural and
Mechanical College was established in 1878 = education
of the colored — (Miss. Code, 1942, oe ); Mississippi
/
t
-- Meredith v. Fair, Et Al. ASI
+
August 10 the hearing on the motion for a preliminary
injunction which commenced and was adjourned June 12 —
was resumed. But on August 11, it was recessed again,
Mr. Shands had to appear in another court August 14 on .
motions he had. filed in another suit. The hearing ‘re-
sumed August 15 and concluded August 16.
At the end of this hearing, the trial judge gave the
defendants until September 5 to file their brief, and the
plaintiff ten days thereafter to file a reply brief.
The last date to
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