# Petition for Writ of Certiorari — Fair v. Meredith > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0458%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1962 - **Citation:** 371 U.S. 828 ## Text eas a 4 © $-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 ‘ : __———, . ao os ad + _- t - ; 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 . 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’ “ 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 : ; ; : 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. “ | ; 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 : : . - 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 —_ 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 i: : AC2 " Meredith v. Fair, Et Al. 4 permitted to choose courses not necessarily leading to his _ graduation. Meredith pursued. the latter course. a," Tha net effect of all thesedelays was that the February 1961 term, the two sm” ver terms of 1961, and the two _regi™r terms of 19 -62 slipped by before the parties litigant actually came to. a showdown fight.. Some of these delays, as in any litigation, were inevitable. Some: are attributable to continuanées of doubtful propriety and to unreasonably long delays by the trial judge.’ We _refer, for example, to the delay between the end of the : trial, August 16, and the, entry pt the-district court ’s \ order, December 14. Many’ of. the delays resulted from the requests of defendants. We do not question Mr. Shands’ good faith or tlie fact’ of his illness, but the A® torney General’s Office is well-staffed.” And—there are . ’ plenty of lawyers in Mississippi ready, able, and more. than willing to represent the University. We draw the inferehee that not a few of the continuances-and the re- - quests for time in which to write briefs were part of the defendants’ delaying action designed to defeat the plain- “tiff by discouragingly ‘high obstacles that would result, in) the case carrying through his senior year. ‘It almost worked. ; As i aee: of law, the principle of ‘deliberate speed”? — - “has no application-at the college level; time is of the es- sence. In an action for admissiogi to a graduate or under- graduate school, counsel for all the litigants and trial judges too should be sensitive to the necessity for speedy justie® Lucy*v. Adams, N.D. Ala., 1955, 134 F. Supp. ® There are nine lawyers on the Attorney General’s staff. Of coun- : sel for the defendants in this case, in addition to Mr. Shands, were an Assistant Attorney General and two Special Assistants. * The Assistant Attorney General and-one of the Special Assis- } ra carried the brunt of the appellate arguments before this ~ourt, Die : § — rs Fair, Et Al. . .. AG 280, aff'd 228 | aes | G19 cert. den. 351 U.S. 931; see x also $50, UC. “a and stone Rins ce. _ Board of Control, 1956, 350 ive eee Meets We. = now to the redsons the U niye rsity gave in its” letfer o > May 2». for rejpeting Meredith. ‘ A. Alumni Certificates—I setters of Recommendation lL. One of: the most ¢ byi ious dodges for evading the ad- mission of Negroes. te white’? colleges is the require- -ment that an-applicant furnish letters or alumni certifi- cates. “Fhe Board. established the requirement by reso- lution, ‘November Is, 1954, just a few months after the Supreme Court decided Brow v. Board vf E'ucation. We mention it again at this point in the’ opinion because its adoption and incorporation in eatrent Bulletins (Cat- alogues) of the: University show affirmative action by the Board to evade desegregation. The action, wenn - tionably. was part of conscious University and State pol- icy. if was action that must have heen pree ceded by diseussion amone members af the Board. The. University? s continued use. of the requirement SQels comple tely. anjastifleble 4 in View of decisions deiy- ing the use of such certific ‘ates: at Louisiana’ State Uni- “versity and atthe U niversity of Georgia. Since at least “1958, when Ludle _e. Board of Supervisors,. Louisiana State Vaicersity, ELD. La., 150 F. Supp., aff "d, 252 F. 2d 302 (wert, den, 898 U. Ss 900) was decided, the Board has been on notice that the courts construe such a requirement, - as an unconstitutional discrimination against Negroes, If the Board’had any doubt about it, that doubt should have been resolved in 1959-w hen a similar requisite of the U hiversity of Georgia was held to be unconstitutional. © A64 Meredith v. Fair, Et Al. Hunt v. Arnold, S ..D.Ga., 172 F. Pneen 847 (not appeal- ed). We regard the continued insistence on the require- ment as demonstrable evidence of a State and University _ policy of segregation that was applied to Mer edith. ' 2. Although defendants’ counsel hi that the alumni certificates were for discriminatory purposes or had dis- criminatory effects, they assert that the enabling resolu- tion of the Board was an administrative order havi ing the effect of a state statute. For this reason, they say that a three-judge court should have passed ‘on the constitu- . tionality of the certificates. (This position is, of course, Meonsistent with the defendants’ we-still-say- its scissors denial of any state policy of segregation. in Mississippi colleges.) We hold that the Board resolution was an- administrative order having an effect similar to a statute, and that it constituted a broad state policy and university policy. We hold, however, that its manifest unconstitu-: tionality makes -a_three- ‘ale court unnecessary. Ex Parte Poresky; 1933, 290 U.S. 30, 54 S: Ct. 3, 78 L. Ed. 152; Turner v. City ‘of Memphis, W.D. Tenn., 1961, 199 IF’. Supp. 585, vaeated, U.S. J 82 8. Ci. _.. 7 L. Ed 2d _ 762; Bailey v. Patterson, S.D. Miss., 1961, 199 F. Supp. ° 595, vacated, U:S. 82,8. Ct. .”, 7b. Ed.'2d 512. 3. The evidence also shows: that the requifement of ‘alumni certificates was discriminatorily applied te Mere- dith. The Registrar testified that the files of white trans- fer students admitted to the 1961 summer session con- tained letters of recommendation which did not mention good moral character. He explained that such students were permitted to register pending the receipt of all re- quired certificates. No-such latitude was extended Mere- . dith. Meredith vwvFair, Et Ale * 65 B. The University’s Policy Regarding Transfer ‘Students from Non-Member Colleges of. Re- gional Associations. 7 : February 4,” 1961, just Six days after the University “received Meredith’s application, the Board adopted the following resolution : “(That all state supported Institutions of Higher _ Learning may accept ‘transfer students from other “state supported Institutions of Higher Learning, - private collegés or denominational. colleges. only when the previous program of the transferring college is acceptable: to the recéiving Institution, and the program of studies completed’ by the stu- dent, and the quality of the student’s work ‘in said transferring collége is acceptable: to the receiving Institution and to the Board of Trustées.”’ ‘ This resolution stiffens the poliey as stated in the Uni- versity Bulletin, General Catalog, Issue 1960: “ADMISSION FOR TRANSFER STUDENTS: * ADVANCEST AN DING, Students may be admitted from other approved institutions of higher learning » But this | reason is no longer valid. December 16, 1! 61, Jackson State was admitted to membership i in the Asso- ciation. The reason ‘was never v [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0458%3A2. Public record. Not legal advice.