Case Information

*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN GROVER SELLERS

ATTORNEY GENERAL

Honorable T. S. Painter

Acting President

Cnlversitg of Texas Texas

Austin, Dear Sir: Opinion NO. o-7126 Re: Whether a person of negro ancestry, otherwise quall- fied for admission into the University of Texas, may be legally admitted to that institution.

In your letter of February 26, you have requested ~. an opinion from this offLoe relative to the above subject. The facts which have -occasFoned your request may be

briefly summarized. A negro, Reman Marion Sweatt, of Rouston, : Texas, has applied for admission es a student in, the lawschool of. the University of Tens, olaiming that the University is the only state instituti.on of higher learning in this State furnishing faoi, litles and lnstruotion for the proper training in the profession of law. The applicant, who Is a oitieenof Texas, is scholastically qualified for admission. When making the application, Sweatt was by a committee representing the interests of the negrc aooomp8nied citizens of this State in procuring Immediate public higher educa- tional faollltles and instruotion for negroes in various profess;ionr. It appears from your letter that this is to be a test case, and that the case of State ex rel. Gaines v. Canada (305 U.S. 337, S. Ct 232, 83 L. Ed is relied upon as authority for the position of the applicant and the committee. It is also noted that it has not been the poliog of the University to admit negroea as students and that this Is probably the firs't instance in which a negro has presented himself for registrat,ion as a student. In this opinion, it has been assumed that the applioation was made in good faith,and the question presented has been determined on a consideration of (1) the law of Texas regarding the separation of races in institutions of higher learning and (2) a consideration *2 Honorable T:S. Painter, Page 2

of such law in the light of the 14th Amendment to the Constitution of the United States, guaranteeing equality of privileges and immunities to citizens.

The wise and long-continued policy of segregation of

races in educational institutions of this State has prevailed since the abolition of slavery, and suoh policy is found incorporated not <;nly In the Constitution of the State of Texas (see Article 7, Seo- ti.ons 7 and 14 but also in numerous releted statutes :<88, 2538, 4 ’ (see Articles 26 4, 2719, 2749, 2900, 3221, 3259-a and S.B. ,228, Chap. 308, page 506, Aots 49th Legislature, 1945). The oonstitut1onalitg of such a olicy and of laws in accord therewith has been repeatedly sustained see State ex rel. Gaines v. Canada, supra; Plessy v. Fer- 163 U.S 537; McCabe v. Atchison, T. & S. F. Ry. Co., 235 ?%oni51; and suthorities there cited).

The controlling oase as to whetherthe'polioy of segrega- ting races in Texas operates to "abridge+equal privileges and immuni- Oies of oitisens of the United States" is State ex'rel. Gaines v. Canada', supra. In that case; a fact situations1mil.ar to the one hsre presented was before the oourt. Therein the Supreme Court of the United States held that it was unquestionably the duty of a S%%e to provide equal eduoationaladvantages within the State and t:hat.if suoh was not done it would oonstitute a dlsorimlnstlon in violetion of the Constitution of the United States. The oourt's decision was based principally upon the fact that the Missouri statutes (Section 9618 and 9522) left the establishment of equal aduoational advantages to the discretion of a Board of Curators, "'when necessary and practicable in thefr opininn," and it was olear that if a mandatory duty had been Imposed on the.Bcard to provide such advantages, it would have constituted nti violation of the Federal Constitution. :~I

This ~offioe, like the oourts of .this~State, is bound by the deoisions of the Supreme Court of the United States and in oon- sequenoe there is no doubt that if equal educational advantages are not provided for the,applioent within the State, he must be admitted to the law school of the University of Texas.

It is not required, however, that the State maintain in a oofidition of Idleness and non-use facilities to efford the applioant these advantages (see Bluford v. Canada, 32 Fed. Supp. 707 - appeal dismissed 119 F (2) 779; State ex rel. Miahael, et al. v. Witham,

: , supra). The State has a constitutional right to furnish equal facilities in separate sohools If it so desires and If the State has made provision for such faoilities for negroes and has plaoed a mandatory duty upon any of its officers, the applicant is not deprived of any oonstitutional right until applioation has first been made to the proper authorities and the applioant~s rights have been unlawfully refused (see Gsines v. Canada, supra; Bluford v. Canada, supra); The State is entitled to s reasonable notice that the faoilities providing equal educational advantages are de- sired before its established policy of segregation is abrogated; and a refusal by the.designated authorities to provide facilities may not be antioipated (See Bluford v. Canada, su$ra; and State ex rel. Michael v. Witham, supra).

The rights of the applicant in the instant case are therefore, oontrolled by the import of Senate Bill 228, Acts 49th Legislature, 1945, Chapter 308, page 506, which-was effeotive June 1, 1945, and in Section 2 of which It is, provided:

"Whenever'there is any demand for same the Board ,of Directors of the Agricultural and Mechanical College. In addition to the.co-&es of study now authorfeed fo; . said institution, is authorized to provide for the establishment' of oourses in law, me tine, e pharmacy, journalism, neering, or ai; ;;~;re~ra;lyn& ypd college course taught at t

said ~Prairie Tfiew University, which oourses shali be substantially equivalent to those offered atthe Univer- Sity of Texas." (Mmphasis added)

This Act provides for instruction for the colored people of this state substentielly equivalent to that offered at the Univer- sity of Texas and, if mandetory, e,qual educational advantages for negroes are thereby provided.~ In determining whether an Aot is man- datory or only permissive the intent of the Legislature~should oontrol ' and no formallstio rule of grammar or word form should stsnd in the way of effectuating the legislative Intent (Horack8s Sutherland Statutory Construction, Sections 2802, 2803, volume 2,.pages 215, 215, If a statute oonfers authority on a public officer which concerns the public interest or the rights of third persons, it is mandatory al-. tinough oouohed in permissive language (39 Tex. Jur., Sec. 17) and this principle has been announced by the Supreme Court of Texas (see McLaughlin v Smith, S-W. when It was said th.at "a direction contained in a statute, though couched in merely permissive languege, will not be construed as leaving compliance optional when the good sense of the entire enactment requires Its provisions to be deemed

oompulsory," and that permissive words should be construed as mandatory when used to clothe a public officer with power to do an act which oughtto be done for the seke of justioe or whioh con- cerns the public interest or the rights of third persons. Further, it must be presumed that the Legislature had knowledge of the deci- sions of the courts concerning the same subject matter and did not intend to pass an Act which, if only premissive, would not meet the requirements of such decisions.

The Act of 1945, then, is mandatory and Imposes a xlear duty upon the Board of Directors of the Agrloultural and Mechanical College to provide at the Proirle View University instruction in the courses named therein "whenever there is any demand." A demand by only one individual is suffioient. Speoifioally, in the instant case, the,Bosrd must provide legal~~tralning substantially equivalent to that offered to white students at the University of Texas on the npplioant~s demand therefor.

A detailed discussion of the matter of appropriations to enable the Board of Directors to disoharge their duty in the premises Is not within the scope of this opinion However, after an lnvesti- Eation thereof it is not believed that this presents any obstaole to providing legal instruction for the applioant after demand and reason- able notice. ?

It should also be noted that if equal educational advan- tages are provided for the colored people of this Stste, it makes no differenoe whether such is done in a oonstitutional or statutory sohool and it is not therefore necessary to discuss the nature of Prairie View University or the establishment of a "College or Branch UniversLty" pursuant to Artlole Seotion 14, of the Constitutlon~ :

A 11 of the foregoing oonsldered, it is concluded-that the segregatlon of races in educational institutions in Texas may not be abrogated unless and until the applicant in good faith makes a demo:!?: for legal training at Prairie View University, gives the authorities reasonable notice, and is imlawPuZly

refused. Aooordingly, you are advised that the applicant should et this time be refused admission to the University of Texas.

Yours very truly ,QPROVEU MAR 16 1946 Grover Sellers ATTGRNEYGEEEEALOF TEXAS