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333 U.S. 147
HURST, Chief Justice, et al.
No. 325 Misc.
on Motion for Leave to File Petition for Writ of Mandamus Jan. 30, 1948.
Decided Feb. 16, 1948.
Messrs. Thurgood Marshall, of New York City, and Amos T. Hall, of Oklahoma City, Okl., for petitioner.
Petitioner moves for leave to file a petition for a writ of mandamus to compel compliance with our mandate [ Fisher v. Hurst 333 U.S. 147 (1948) ] [333 U.S. 147 , 148]
issued in Sipuel v. Board of Regents, 332 U.S. 631 , January 12, 1948. We there said:
The only question before us on this petition for a writ of mandamus is whether or not our mandate has been followed. It is clear that the District Court of Cleveland County did not depart from our mandate.
The petition for certiorari in Sipuel v. Board of Regents, did not present the issue whether a state might not satisfy the equal protection clause of the Fourteenth Amendment by establishing a separate law school for Negroes. On submission, we were clear it was not an issue here. The Oklahoma Supreme Court upheld the refusal to admit petitioner on the ground that she had failed to demand establishment of a separate school and admission to it. On remand, the district court correctly understood our decision to hold that the equal protection clause permits no such defense.
Nothing which may have transpired since the orders of the Oklahoma courts were issued is in the record before us, nor could we consider it on this petition for writ of mandsmus if it were. The Oklahoma District Court has retained jurisdiction to hear and determine any question arising under its order. Whether or not the order is followed or disobeyed should be determined by it in the first instance. The manner in which, or the method by which, Oklahoma may have satisfied, or could satisfy the requirements of the mandate of this Court, as applied by the District Court of Cleveland County in its order of January 22, 1948, is not before us. [333 U.S. 147 , 151] Motion for leave to file petition for writ of mandamus is denied.
Mr. Justice MURPHY is of the opinion that a hearing should be had in order to determine whether the action of the Oklahoma courts subsequent to the issuance of this Court's mandate constitutes an evasion of that mandate.
Mr. Justice RUTLEDGE, dissenting.
I am unable to join in the Court's opinion or in its disposition of the petition. In my judgment neither the action taken by the Supreme Court of Oklahoma nor that of the District Court of Cleveland County, following upon the decision and issuance of our mandate in No. 369, Sipuel v. Board of Regents, 332 U.S. 631 , decided January 12, 1948, is consistent with our opinion in that cause or therefore with our mandate which issued forthwith. 1
It is possible under those orders for the state's officials to dispose of petitioner's demand for a legal education equal to that afforded to white students by establishing overnight a separate law school for Negroes or to continue affording the present advantages to white students while denying them to petitioner. The latter could be done either by excluding all applicants for admission to the first-year class of the state university law school after the date of the District Court's order or, depending upon the meaning of that order, by excluding such applicants and asking all first-year students enrolled prior to that order's date to withdraw from school.
Neither of those courses, in my opinion, would comply with our mandate. It plainly meant, to me at any [333 U.S. 147 , 152] rate, that Oklahoma should end the discrimination practiced against petitioner ato nce, not at some later time, near or remote. It also meant that this should be done, if not by excluding all students, then by affording petitioner the advantages of a legal education equal to those afforded to white students. And in my comprehension the equality required was equality in fact, not in legal fiction.
Obviously no separate law school could be established elsewhere overnight capable of giving petitioner a legal education equal to that afforded by the state's long-established and well-known state university law school. Nor could the necessary time be taken to create such facilities, while continuing to deny them to petitioner, without incurring the delay which would continue the discrimination our mandate required to end at once. Neither would the state comply with it by continuing to deny the required legal education to petitioner while affording it to any other student, as it could do by excluding only students in the first-year class from the state university law school.
Since the state courts' orders allow the state authorities at their election to pursue alternative courses, some of which do not comply with our mandate, I think those orders inconsistent with it. Accordingly I dissent from the Court's opinion and decision in this case.
[ Footnote 1 ] The mandate reversed the Oklahoma Supreme Court's judgment and remand ed the cause to it 'for proceedings not inconsistent with this opinion.'