1. The State of Missouri provides separate schools and
universities for whites and negroes. At the state university,
attended by whites, there is a course in law; at the Lincoln
University, attended by negroes, there is as yet none, but it is
the duty of the curators of that institution to establish one there
whenever in their opinion this shall be necessary and practicable,
and pending such development, they are authorized to arrange for
legal education of Missouri negroes, and to pay the tuition charges
therefor, at law schools in adjacent States where negroes are
accepted and where the training is equal to that obtainable at the
Missouri State University. Pursuant to the State's policy of
separating the races in its educational institutions, the curators
of the state university refused to admit a negro as a student in
the law school there because of his race; whereupon he sought a
mandamus, in the state courts, which was denied.
Held:
(1) That inasmuch as the curators of the state university
represented the State, in carrying out its policy, their action in
denying the negro admission to the law school was state action
within the meaning of the Fourteenth Amendment. P.
305 U. S.
343.
(2) The action of the State in furnishing legal education within
the State to whites while not furnishing legal education within the
State to negroes was a discrimination repugnant to the Fourteenth
Amendment. P.
305 U. S.
344.
If a State furnishes higher education to white residents, it is
bound to furnish substantially equal advantages to negro residents,
though not necessarily in the same schools.
(3) The unconstitutional discrimination is not avoided by the
purpose of the State to establish a law school for negroes whenever
necessary and practicable in the opinion of the curators of the
University provided for negroes. P.
305 U. S.
346.
(4) Nor are the requirements of the equal protection clause
satisfied by the opportunities afforded by Missouri to its negro
citizens for legal education in other States. P.
305 U. S.
348.
The basic consideration here is not as to what sort of
opportunities other States provide, or whether they are as good as
those
Page 305 U. S. 338
in Missouri, but as to what opportunities Missouri itself
furnishes to white students and denies to negroes solely upon the
ground of color. The admissibility of laws separating the races in
the enjoyment of privileges afforded by the State rests wholly upon
the equality of the privileges which the laws give to the separated
groups within the State. By the operation of the laws of Missouri,
a privilege has been created for white law students which is denied
to negroes by reason of their race. The white resident is afforded
legal education within the State; the negro resident having the
same qualifications is refused it there, and must go outside the
State to obtain it. That is a denial of the equality of legal right
to the enjoyment of the privilege which the State has set up, and
the provision for the payment of tuition fees in another State does
not remove the discrimination. P.
305 U. S.
348.
(5) The obligation of the State to give the protection of equal
laws can be performed only where its laws operate, that is, within
its own jurisdiction. It is there that the equality of legal right
must be maintained. That obligation is imposed by the Constitution
upon the States severally as governmental entities each responsible
for its own laws establishing the rights and duties of persons
within its borders. P.
305 U. S.
350.
(6) The fact that there is but a limited demand in Missouri for
the legal education of negroes does not excuse the discrimination
in favor of whites. P.
305 U. S.
350.
(7) Inasmuch as the discrimination may last indefinitely -- so
long as the curators find it unnecessary and impracticable to
provide facilities for the legal education of negroes within the
State, the alternative of attendance at law schools in other States
being provided meanwhile -- it cannot be excused as a temporary
discrimination. P.
305 U. S.
351.
2. The state court decided this case upon the merits of the
federal question, and not upon the propriety of remedy by mandamus.
P.
305 U. S.
352.
342 Mo. 121; 113 S.W.2d 783, reversed.
CERTIORARI,
post, p. 580, to review a judgment
affirming denial of a writ of mandamus.
Page 305 U. S. 342
MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court.
Petitioner Lloyd Gaines, a negro, was refused admission to the
School of Law at the State University of Missouri. Asserting that
this refusal constituted a denial by the State of the equal
protection of the laws in violation of the Fourteenth Amendment of
the Federal Constitution, petitioner brought this action for
mandamus to compel the curators of the University to admit him. On
final hearing, an alternative writ was quashed and a peremptory
writ was denied by the Circuit Court. The Supreme Court of the
State affirmed the judgment. 113 S.W.2d 783. We granted certiorari,
October 10, 1938.
Petitioner is a citizen of Missouri. In August, 1935, he was
graduated with the degree of Bachelor of Arts at the Lincoln
University, an institution maintained by the State of Missouri for
the higher education of negroes. That University has no law school.
Upon the filing of his application for admission to the law school
of the University of Missouri, the registrar advised him to
communicate with the president of Lincoln University, and the
latter directed petitioner's attention to § 9622 of the
Revised Statutes of Missouri (1929), providing as follows:
"Sec. 9622.
May arrange for attendance at university of any
adjacent state -- Tuition fees. -- Pending the full
development of the Lincoln university, the board of
Page 305 U. S. 343
curators shall have the authority to arrange for the attendance
of negro residents of the state of Missouri at the university of
any adjacent state to take any course or to study any subjects
provided for at the state university of Missouri, and which are not
taught at the Lincoln university and to pay the reasonable tuition
fees for such attendance;
provided that, whenever the
board of curators deem it advisable, they shall have the power to
open any necessary school or department. (Laws 1921, p. 86, §
7.)"
Petitioner was advised to apply to the State Superintendent of
Schools for aid under that statute. It was admitted on the trial
that petitioner's
"work and credits at the Lincoln University would qualify him
for admission to the School of Law of the University of Missouri if
he were found otherwise eligible."
He was refused admission upon the ground that it was "contrary
to the constitution, laws and public policy of the State to admit a
negro as a student in the University of Missouri." It appears that
there are schools of law in connection with the state universities
of four adjacent States, Kansas, Nebraska, Iowa and Illinois, where
nonresident negroes are admitted.
The clear and definite conclusions of the state court in
construing the pertinent state legislation narrow the issue. The
action of the curators, who are representatives of the State in the
management of the state university (R.S.Mo. § 9625), must be
regarded as state action. [
Footnote
1] The state constitution provides that separate free public
schools shall be established for the education of children of
African descent (Art. XI, § 3), and, by statute, separate high
school facilities are supplied for colored students equal to those
provided for white students (R.S.Mo.
Page 305 U. S. 344
§§ 9346-9349). While there is no express
constitutional provision requiring that the white and negro races
be separated for the purpose of higher education, the state court,
on a comprehensive review of the state statutes, held that it was
intended to separate the white and negro races for that purpose
also. Referring in particular to Lincoln University, the court
deemed it to be clear
"that the Legislature intended to bring the Lincoln University
up to the standard of the University of Missouri, and give to the
whites and negroes an equal opportunity for higher education -- the
whites at the University of Missouri, and the negroes at Lincoln
University."
Further, the court concluded that the provisions of § 9622
(above-quoted) to the effect that negro residents "may attend the
university of any adjacent State with their tuition paid, pending
the full development of Lincoln University," made it evident "that
the Legislature did not intend that negroes and whites should
attend the same university in this State." In that view, it
necessarily followed that the curators of the University of
Missouri acted in accordance with the policy of the State in
denying petitioner admission to its School of Law upon the sole
ground of his race.
In answering petitioner's contention that this discrimination
constituted a denial of his constitutional right, the state court
has fully recognized the obligation of the State to provide negroes
with advantages for higher education substantially equal to the
advantages afforded to white students. The State has sought to
fulfill that obligation by furnishing equal facilities in separate
schools, a method the validity of which has been sustained by our
decisions.
Plessy v. Ferguson, 163 U.
S. 537,
163 U. S. 544;
McCabe v. Atchison, T. & S.F. Ry. Co., 235 U.
S. 151,
235 U. S. 160;
Gong Lum v. Rice, 275 U. S. 78,
275 U. S. 85,
275 U. S. 86.
Compare Cumming v. Board of Education, 175 U.
S. 528,
175 U. S. 544,
175 U. S. 545.
Respondents' counsel have appropriately emphasized the special
Page 305 U. S. 345
solicitude of the State for the higher education of negroes as
shown in the establishment of Lincoln University, a state
institution well conducted on a plane with the University of
Missouri so far as the offered courses are concerned. It is said
that Missouri is a pioneer in that field and is the only State in
the Union which has established a separate university for negroes
on the same basis as the state university for white students. But,
commendable as is that action, the fact remains that instruction in
law for negroes is not now afforded by the State, either at Lincoln
University or elsewhere within the State, and that the State
excludes negroes from the advantages of the law school it has
established at the University of Missouri.
It is manifest that this discrimination, if not relieved by the
provisions we shall presently discuss, would constitute a denial of
equal protection. That was the conclusion of the Court of Appeals
of Maryland in circumstances substantially similar in that aspect.
University of Maryland v. Murray, 169 Md. 478, 182 A. 590.
It there appeared that the State of Maryland had "undertaken the
function of education in the law," but had "omitted students of one
race from the only adequate provision made for it, and omitted them
solely because of their color"; that, if those students were to be
offered "equal treatment in the performance of the function, they
must, at present, be admitted to the one school provided."
Id., p. 489. A provision for scholarships to enable
negroes to attend colleges outside the State, mainly for the
purpose of professional studies, was found to be inadequate
(
Id. pp. 485, 486), and the question "whether with aid in
any amount it is sufficient to send the negroes outside the State
for legal education" the Court of Appeals found it unnecessary to
discuss. Accordingly, a writ of mandamus to admit the applicant was
issued to the officers and
Page 305 U. S. 346
regents of the University of Maryland as the agents of the State
entrusted with the conduct of that institution.
The Supreme Court of Missouri in the instant case has
distinguished the decision in Maryland upon the grounds -- (1)
that, in Missouri, but not in Maryland, there is "a legislative
declaration of a purpose to establish a law school for negroes at
Lincoln University whenever necessary or practical", and (2)
that,
"pending the establishment of such a school, adequate provision
has been made for the legal education of negro students in
recognized schools outside of this State."
113 S.W.2d p. 791.
As to the first ground, it appears that the policy of
establishing a law school at Lincoln University has not yet ripened
into an actual establishment, and it cannot be said that a mere
declaration of purpose, still unfulfilled, is enough. The provision
for legal education at Lincoln is at present entirely lacking.
Respondents' counsel urge that, if, on the date when petitioner
applied for admission to the University of Missouri, he had instead
applied to the curators of Lincoln University, it would have been
their duty to establish a law school; that this "agency of the
State," to which he should have applied, was "specifically charged
with the mandatory duty to furnish him what he seeks." We do not
read the opinion of the Supreme Court as construing the state
statute to impose such a "mandatory duty" as the argument seems to
assert. The state court quoted the language of § 9618,
R.S.Mo.1929, set forth in the margin, [
Footnote 2] making it the mandatory
Page 305 U. S. 347
duty of the board of curators to establish a law school in
Lincoln University "whenever necessary and practicable in their
opinion." This qualification of their duty, explicitly stated in
the statute, manifestly leaves it to the judgment of the curators
to decide when it will be necessary and practicable to establish a
law school, and the state court so construed the statute.
Emphasizing the discretion of the curators, the court said:
"The statute was enacted in 1921. Since its enactment, no negro,
not even appellant, has applied to Lincoln University for a law
education. This fact demonstrates the wisdom of the legislature in
leaving it to the judgment of the board of curators to determine
when it would be necessary or practicable to establish a law school
for negroes at Lincoln University. Pending that time, adequate
provision is made for the legal education of negroes in the
university of some adjacent State, as heretofore pointed out."
113 S.W.2d p. 791.
The state court has not held that it would have been the duty of
the curators to establish a law school at Lincoln University for
the petitioner on his application. Their duty, as the court defined
it, would have been either to supply a law school at Lincoln
University as provided in § 9618 or to furnish him the
opportunity to obtain his legal training in another State, as
provided in § 9622
Thus, the law left the curators free to adopt the latter course.
The state court has not ruled or intimated that their failure or
refusal to establish a law school for a very few students, still
less for one student, would have been an abuse of the discretion
with which the curators were entrusted. And, apparently, it was
because of that discretion,
Page 305 U. S. 348
and of the postponement which its exercise in accordance with
the terms of the statute would entail until necessity and
practicability appeared, that the state court considered and upheld
as adequate the provision for the legal education of negroes, who
were citizens of Missouri, in the universities of adjacent States.
We may put on one side respondent's contention that there were
funds available at Lincoln University for the creation of a law
department and the suggestions with respect to the number of
instructors who would be needed for that purpose and the cost of
supplying them. The president of Lincoln University did not advert
to the existence or prospective use of funds for that purpose when
he advised petitioner to apply to the State Superintendent of
Schools for aid under § 9622. At best, the evidence to which
argument as to available funds is addressed admits of conflicting
inferences, and the decision of the state court did not hinge on
any such matter. In the light of its ruling, we must regard the
question whether the provision for the legal education in other
States of negroes resident in Missouri is sufficient to satisfy the
constitutional requirement of equal protection as the pivot upon
which this case turns.
The state court stresses the advantages that are afforded by the
law schools of the adjacent States -- Kansas, Nebraska, Iowa and
Illinois -- which admit nonresident negroes. The court considered
that these were schools of high standing where one desiring to
practice law in Missouri can get "as sound, comprehensive, valuable
legal education" as in the University of Missouri; that the system
of education in the former is the same as that in the latter, and
is designed to give the students a basis for the practice of law in
any State where the Anglo-American system of law obtains; that the
law school of the University of Missouri does not specialize in
Missouri law, and that the course of study and the case books
used
Page 305 U. S. 349
in the five schools are substantially identical. Petitioner
insists that, for one intending to practice in Missouri, there are
special advantages in attending a law school there, both in
relation to the opportunities for the particular study of Missouri
law and for the observation of the local courts [
Footnote 3] and also in view of the prestige
of the Missouri law school among the citizens of the State, his
prospective clients. Proceeding with its examination of relative
advantages, the state court found that the difference in distances
to be traveled afforded no substantial ground of complaint, and
that there was an adequate appropriation to meet the full tuition
fees which petitioner would have to pay.
We think that these matters are beside the point. The basic
consideration is not as to what sort of opportunities other States
provide, or whether they are as good as those in Missouri, but as
to what opportunities Missouri itself furnishes to white students
and denies to negroes solely upon the ground of color. The
admissibility of laws separating the races in the enjoyment of
privileges afforded by the State rests wholly upon the equality of
the privileges which the laws give to the separated groups within
the State. The question here is not of a duty of the State to
supply legal training, or of the quality of the training which it
does supply, but of its duty when it provides such training to
furnish it to the residents of the State upon the basis of an
equality of right. By the operation of the laws of Missouri, a
privilege has been created for white law students which is denied
to negroes by reason of their race. The white resident is afforded
legal education within the State; the negro resident having the
same qualifications is refused it there, and must go outside the
State to obtain it. That is a denial of the equality of legal right
to the enjoyment of the privilege
Page 305 U. S. 350
which the State has set up, and the provision for the payment of
tuition fees in another State does not remove the
discrimination.
The equal protection of the laws is "a pledge of the protection
of equal laws."
Yick Wo v. Hopkins, 118 U.
S. 356,
118 U. S. 369.
Manifestly, the obligation of the State to give the protection of
equal laws can be performed only where its laws operate, that is,
within its own jurisdiction. It is there that the equality of legal
right must be maintained. That obligation is imposed by the
Constitution upon the States severally as governmental entities --
each responsible for its own laws establishing the rights and
duties of persons within its borders. It is an obligation the
burden of which cannot be cast by one State upon another, and no
State can be excused from performance by what another State may do
or fail to do. That separate responsibility of each State within
its own sphere is of the essence of statehood maintained under our
dual system. It seems to be implicit in respondents' argument that,
if other States did not provide courses for legal education, it
would nevertheless be the constitutional duty of Missouri, when it
supplied such courses for white students, to make equivalent
provision for negroes. But that plain duty would exist because it
rested upon the State independently of the action of other States.
We find it impossible to conclude that what otherwise would be an
unconstitutional discrimination, with respect to the legal right to
the enjoyment of opportunities within the State, can be justified
by requiring resort to opportunities elsewhere. That resort may
mitigate the inconvenience of the discrimination, but cannot serve
to validate it.
Nor can we regard the fact that there is but a limited demand in
Missouri for the legal education of negroes as excusing the
discrimination in favor of whites. We had occasion to consider a
cognate question in the case
Page 305 U. S. 351
of
McCabe v. Atchison, T. & S.F. Ry. Co., supra.
There, the argument was advanced, in relation to the provision by a
carrier of sleeping cars, dining, and chair cars, that the limited
demand by negroes justified the State in permitting the furnishing
of such accommodations exclusively for white persons. We found that
argument to be without merit. It made, we said, the constitutional
right
"depend upon the number of persons who may be discriminated
against, whereas the essence of the constitutional right is that it
is a personal one. Whether or not particular facilities shall be
provided may doubtless be conditioned upon there being a reasonable
demand therefor, but, if facilities are provided, substantial
equality of treatment of persons traveling under like conditions
cannot be refused. It is the individual who is entitled to the
equal protection of the laws, and if he is denied by a common
carrier, acting in the matter under the authority of a state law, a
facility or convenience in the course of his journey which under
substantially the same circumstances is furnished to another
traveler, he may properly complain that his constitutional
privilege has been invaded."
Id. pp.
235 U. S. 161,
235 U. S.
162.
Here, petitioner's right was a personal one. It was as an
individual that he was entitled to the equal protection of the
laws, and the State was bound to furnish him within its borders
facilities for legal education substantially equal to those which
the State there afforded for persons of the white race, whether or
not other negroes sought the same opportunity.
It is urged, however, that the provision for tuition outside the
State is a temporary one -- that it is intended to operate merely
pending the establishment of a law department for negroes at
Lincoln University. While, in that sense, the discrimination may be
termed temporary, it may nevertheless continue for an indefinite
period by reason of the discretion given to the curators of
Lincoln
Page 305 U. S. 352
University and the alternative of arranging for tuition in other
States, as permitted by the state law as construed by the state
court, so long as the curators find it unnecessary and
impracticable to provide facilities for the legal instruction of
negroes within the State. In that view, we cannot regard the
discrimination as excused by what is called its temporary
character.
We do not find that the decision of the state court turns on any
procedural question. The action was for mandamus, but it does not
appear that the remedy would have been deemed inappropriate if the
asserted federal right had been sustained. In that situation, the
remedy by mandamus was found to be a proper one in
University
of Maryland v. Murray, supra. In the instant case, the state
court did note that petitioner had not applied to the management of
Lincoln University for legal training. But, as we have said, the
state court did not rule that it would have been the duty of the
curators to grant such an application, but, on the contrary, took
the view, as we understand it, that the curators were entitled
under the state law to refuse such an application and, in its
stead, to provide for petitioner's tuition in an adjacent State.
That conclusion presented the federal question as to the
constitutional adequacy of such a provision while equal opportunity
for legal training within the State was not furnished, and this
federal question the state court entertained and passed upon. We
must conclude that, in so doing, the court denied the federal right
which petitioner set up and the question as to the correctness of
that decision is before us. We are of the opinion that the ruling
was error, and that petitioner was entitled to be admitted to the
law school of the State University in the absence of other and
proper provision for his legal training within the State.
The judgment of the Supreme Court of Missouri is reversed, and
the cause is remanded for further proceedings not inconsistent with
this opinion.
Reversed.
Page 305 U. S. 353
[
Footnote 1]
Ex parte Virginia, 100 U. S. 339,
100 U. S. 346,
347;
Neal v. Delaware, 103 U. S. 370,
103 U. S. 397;
Carter v. Texas, 177 U. S. 442,
177 U. S. 447;
Norris v. Alabama, 294 U. S. 587,
294 U. S.
589.
[
Footnote 2]
Section 9618, R.S.Mo.1929, is as follows:
"Sec. 9618.
Board of curators authorized to reorganize.
-- The board of curators of the Lincoln university shall be
authorized and required to reorganize said institution so that it
shall afford to the negro people of the state opportunity for
training up to the standard furnished at the state university of
Missouri whenever necessary and practicable in their opinion. To
this end the board of curators shall be authorized to purchase
necessary additional land, erect necessary additional buildings, to
provide necessary additional equipment, and to locate, in the
county of Cole the respective units of the university where, in
their opinion, the various schools will most effectively promote
the purposes of this article. (Laws of 1921, p. 86, § 3.)"
[
Footnote 3]
See University of Maryland v. Murray, 169 Md. 478,
486.
Separate opinion of MR. JUSTICE McREYNOLDS.
Considering the disclosures of the record, the Supreme Court of
Missouri arrived at a tenable conclusion, and its judgment should
be affirmed. That court well understood the grave difficulties of
the situation, and rightly refused to upset the settled legislative
policy of the State by directing a mandamus.
In
Cummming v. Richmond County Board of Education,
175 U. S. 528,
175 U. S. 545,
this Court, through Mr. Justice Harlan, declared:
"The education of the people in schools maintained by state
taxation is a matter belonging to the respective States, and any
interference on the part of Federal authority with the management
of such schools cannot be justified except in the case of a clear
and unmistakable disregard of rights secured by the supreme law of
the land."
Gong Lum v. Rice, 275 U. S. 78,
275 U. S. 85 --
opinion by Mr. Chief Justice Taft -- asserts: "The right and power
of the state to regulate the method of providing for the education
of its youth at public expense is clear."
For a long time, Missouri has acted upon the view that the best
interest of her people demands separation of whites and negroes in
schools. Under the opinion just announced, I presume she may
abandon her law school, and thereby disadvantage her white citizens
without improving petitioner's opportunities for legal instruction;
or she may break down the settled practice concerning separate
schools and thereby, as indicated by experience, damnify both
races. Whether by some other course it may be possible for her to
avoid condemnation is matter for conjecture.
The State has offered to provide the negro petitioner
opportunity for study of the law -- if perchance that is the thing
really desired -- by paying his tuition at some nearby school of
good standing. This is far from unmistakable disregard of his
rights, and, in the circumstances,
Page 305 U. S. 354
is enough to satisfy any reasonable demand for specialized
training. It appears that never before has a negro applied for
admission to the Law School, and none has ever asked that Lincoln
University provide legal instruction.
The problem presented obviously is a difficult and highly
practical one. A fair effort to solve it has been made by offering
adequate opportunity for study when sought in good faith. The State
should not be unduly hampered through theorization inadequately
restrained by experience.
This proceeding commenced in April, 1936. Petitioner, then
twenty-four years old, asked mandamus to compel his admission to
the University in September, 1936, notwithstanding plain
legislative inhibition. Mandamus is not a writ of right, but is
granted only in the court's discretion upon consideration of all
the circumstances.
Duncan Townsite Co. v. Lane,
245 U. S. 308,
245 U. S. 311;
United States ex rel. Arant v. Lane, 249 U.
S. 367,
249 U. S.
371.
The Supreme Court of Missouri did not consider the propriety of
granting the writ under the theory of the law now accepted here.
That, of course, will be matter open for its consideration upon
return of the cause.