AUSTIN. TEXAS

PRICE DANIEL A--o-- July 31, 1948

The Board of Directors The Texas State Universityfor Negroes 2007 PetroleumBuilding Houston 2, Texas Attention: Fir.

John H. Robertson, ExecutiveAssistant

Opinion No. V-645 Re: ,Whether

a white applicant may be admitted to The Texas State University for~Ne,groes. Gentlemen:

You'write that Mr. Jack Coffman, a white citizen of Houston,who.representsthat he isa social sciencemajor from Penn College, Oscaloosa Iowa, desires to be admitted to The Texas State University for Negroes for the purpose of taking courses in sociB1~ science. You request an opinion as to whether he may legally be admitted.

Section 7 of Article VII and related Articles of the Texas Constitutionprovide that separate schools shall be provided for the white and colored stu- ;;;ths and that impartialprovision shall-bemade for

. The.legislative act creating The~Texas 'State Universityfor Negroes1 provides that:

"It is the purpose of~thPs Act to dstablish an entire1

+. separateand equivalent universityo the first class for Negroes "

. . .

f Section 1, Senate Bill 140, Acts,SOth Leg., Ch. 29, PO 36, carried as Art. 2643b, V.A.C.S.I

.

The Texas State Universityfor Negroes, Page 2 (V-645)

With regard to which personswould be eligible for enrollment,the Act further provides in Section 12:

"The term lqualified applicant'as used in this Act shall mean any coloredperson who meets the educationalrequirements

. . . . The term 'coloredperson' (means)

. . . a negro or person of African descent." The Act is plain and unambiguous. It shows without question that the Legislatureintendedto create, and did create, an entirely separateuniversity for NeUnder that Act only Negroesmay be admitted tom !f;Ze&xas State UniverAityfor Negroes.

The sole remaining question is~the constitutionality of the provisionsof the Texas Constitution and the legislativeAct creatingthe Negro University in the 11 ht tion of of the FourteenthAmendmentto the Constituthe United States,which providesthat:
"No state shallmake or enforce any law which shall

. . . deny to any person within its jurisdiction the equal protection of the laws."
In February 1948, the Austin Court of Civil Appeals,

held in the case of Sweatt 1. Painter that~ the State could constitutionally provide separate facilities for the educations

of Negroes and white students,@long as the facilitiesofferedboth groupswere substantially equal.2 That opinion followeda long line of cases by the Supreme Court of the United States to the same effect. Thus in P ess v. Fer son 163 U.S. 537, the' Supreme Court of t&tzd.%%%%id:

"The object of the (14th)Amendment was undoubtedlyto enforce the absolute ,, equality of the two races before the law,' but in the nature of things it could not have been intendedto abolish distinctions based upon color, or to enforce social, as

2210 S.W.(2d) 442. The case is now pending'ona plication for writ of error in the Supreme Court of iexas.The Texas State University for Negroes, Page 3 (v-645)

distinguishedfrom politicalequality,or a comminglingof the two races,uponterms unsatisfactoryto either. ,Lawspermitting, and even requiring,their separation in places where they are liable to be brought into contact do not necessarily imply the inferiorityof either race to the other, and have been generally, if not universally,recognizedas within the compete'ncy

of the state legislaturesin the exercise of their police power. m most common instanceof this is connected with the establishmentof senarate schools for white and colored children,which has been held to be a valid exercise of the le islative Dower even bv courts of States g where the politicalrights of the colored race have been lonrrest and most earnestly enforced.

. . .* Similarly in Cummings1. Board of Education, 175 U.S. 262, that Court stated:

"We may add that while aliadmit that the benefits and burdens,ofpublic taxationmust be shared by citizenswithout discrimination against any class on account of their race, the education of the ueoule in schoolsmaintainedbv stat fiea snective states, and any interferenceon the part of Federal authoritywith the management of such schools cannot be justified except in the case of a clear and unmistakabledisregard of rights secured by the supreme law of the land.

. . .e And the opinion of the U. S. Supreme Court in Gong Lum 1. w, 275 U.S. 7$, reads;'

"The' questionhere is whether a Chinese citizen of the United States is denied equal protectionof the laws when he is classed among the colored races and furnished facilitiesfor e'ducation equal to that offered to all, whether white, brown, yellow or black. Were this a new question, it would call for very full argument and consideration, but we thinkThe Texas State Universityfor Negroes, Page 4 (V-645)

that it is the same questionwhich has been many times decided to be within the constitutional

power of the state legislature to settle without intervention of the federal courts under the'Federa1Constitution.

. . . II

. . . The decision is within the discretion of the State in regulatingits public schoolsand does not conflictwith the FourteenthAmendment. The judgment of the Supreme Court of Mississippi is affirmed."
In the recent case of Missouri (Gaines) v. #WY (1938) 305 U.S. 337, the Supreme Court of se nited States again recognizedthe state's right to provide separate facilities for Negro and white students. Its decision reiterates:

"The State has sought to fulfill .that obligationby furnishingequal facilities in separate schools,a method the validity of which has been sustained by our decisions.

. . .n The Gaines case was cAted with approval in 1948 in Sinue& y. The There are no case w 6i3 S.Ct. 299.

. &eke Court to the contrary.Under these decisions,it is unquestionably now the law that the statesmay constitutionally provide aeparate facilitiesfor the educationof Negro and white students so long as the facilitiesofferedboth groups are substantiallyequal.

The people of Texas in their Constitution, and the Legislaturein its enactments,have adopted the policy that white and Negro students should be educated separately. The law operatesto prohibita white person's entrance to the Negro Universityas well as prohibiting the entrance of a Negro to the white University. The law is and must be applicableequally to both white and Negro citieens.

The University of Texas offers a wide variety of social science courses. The physical facilitiesand scholasticopportunitiesoffered to white studentsatThe Texas State Universityfor Negroes, Page 5 (V-645)

that institution,and other State supported colleges for white students,are substantially equal to those offered Negro students at The Texas State University for Negroes. You are thereforeadvised that Mr. Coffmanmay not legally be admitted to The Texas State University for Negroes.

Since the Texas Constitution and laws provide that white and Negro students shall be educated separately and since substantially equal courses oi study and physical facilities are offered for white students at The University of Texas and other State colleges, a white studentmay not legally be admitted to The Texas State University for Negroes. Constitutionof Texas, Article VII Section 7; Sweatt 1. Painter, 210 S.W.(2d! 442.
Yours very truly,



# . u

Attorney General of Texas

ve Assistant